Sanjay Das vs The State of West Bengal

Kanchan Chakraborty, J.—This appeal is directed against the judgment and order dated 24.5.2010 passed by the learned Additional Sessions Judge Fast Track Court, Sealdah in S.C. No. 07 (01) of 08/S.T. Case No. 04 (01) 08 thereby convicting the appellant Sanjay Das for committing offence u/s 376 of the I.P.C. and sentencing him to suffer S.I. for 7 years with a fine of Rs. 1,000/-. The judgment has been assailed by the appellant Sanjay Das, mainly, on the following grounds:-

a) that the F.I.R was lodged 20 days after the series of incidents of rape and this inordinate delay has not been properly explained;

b) that no independent witness was examined by the prosecution in support of its case despite the fact that the place of occurrence being a Basti area, was thickly populated;

c) that after two consecutive dates of rape, the prosecutrix did not report or narrate the incidents to anyone and her conduct, in fact, destructed the entire case of the prosecution;

d) that there is no evidence to prove, even suggest that there was any resistance or protest from the side of the prosecutrix when she was raped on three occasions;

e) that the learned Trial Court did not take into consideration as to how a young widow who was working in a Nursing Home can sleep in her room without bolting the door from inside;

f) that on the self same fact, two other accused were acquitted for no special reason;

g) that the learned Court erred completely that because of injury found on the bridge of the nose of the appellant, the resistance on the part of the prosecutrix was established and that is how the prosecution brought home the charge u/s 376 of the I.P.C. against this appellant and not against the co-accused;

h) that the judgment impugned being otherwise perverse, is liable to be set aside.

This is a peculiar case where a young widow was raped by one Bablu Das who happens to be her husband''s elder brother and two sons of Bablu Das, Sanjay and Sanajit on three consecutive nights in the same manner and almost at the same time. The prosecution case goes like this:-

On 5.9.2007, at 01.30 hours, Aruna Sarkar was sleeping in her matrimonial house at 4/16/A, Convent Lane. Bablu Das, her brother-in-law, entered into her room, raped her and threatened her with dire consequences in case of disclosure. Two days thereafter, Sanjay Das, son of Bablu Das raped Aruna in the similar way at almost same time. On the next date, Sanajit Das raped Aruna in the similar manner and almost at the same time. Aruna informed the incident to the wife of Bablu Das but she did not take any step and ultimately, she informed the incident to the Entally Police Station and on the basis of the said information, Entally Police Station Case No. 229 of 2007 dated 26.9.2007 under Sections 376/34 of the I.P.C. was started. The case was investigated into and finally ended in a charge sheet against Bablu Das, Sanjay Das and Sanajit Das for committing offence u/s 376 of the I.P.C. All the accused were arrayed to face the charge to which they pleaded not guilty. As a consequence, the trial commenced.

The learned Court recorded evidence of 12 witnesses examined on behalf of the prosecution and admitted some documents into evidence including the statement of the prosecutrix u/s 164 of the Cr. P. C. and medical reports which were marked as exhibits. No witness was examined on behalf of the accused persons.

Upon consideration of the evidence on record, oral and documentary, the learned Trial Court came to a conclusion that the charge against Bablu Das and Sanajit Das was not established but charge against Sanjay Das, the appellant herein, was established and accordingly, his conviction and sentence was recorded which is impugned in this appeal on the grounds mentioned earlier.

Mr. Bhattacharyya, learned Counsel appearing on behalf of the appellant submits that the facts of the entire case is not at all believable and acceptable. The learned Trial Court itself did not accept the prosecution case. But, recorded conviction and sentence of the appellant simply because a healed up injury was detected on the bridge of his nose. The learned Court connected the injury with the alleged incident of rape that took place two days after the alleged incident of rape by Bablu Das. He submitted that the learned Court relying on the injury detected on the bridge of the nose of the appellant and the vaginal part of the prosecutrix, came to such a conclusion which is not supported by any evidence even evidence of the prosecutrix.

Mr. Bhattacharyya, learned Counsel for the appellant contended that the conduct of the prosecutrix itself creates doubt. She did not narrate the incident allegedly had taken place on 5.9.2007 to anybody. She did not narrate or disclose the incident allegedly taken place one day thereafter to anybody. She also did not disclose the incident allegedly had taken place one day after the alleged second incident. She remained silent for a considerable period of time. Even though she was physically ill as stated in the F.I.R., she could have, in all probabilities, disclosed the incidents to the inhabitants of the said Basti. For reason unknown, she did not disclose the facts to anybody. She did not also inform her brother or any member of her paternal house immediately after the incident but first went to the Police Station and thereafter to the member of her paternal house.

Mr. Bhattacharyya further contended that it is clear from the evidence of the prosecutrix that she never raised any protest or resistance. The door of her room, as it appears, remained open even after the happening of first incident. That fact cannot be accepted. The door of the room was not found in broken condition at least no evidence is recorded by the Court to that effect. There is no evidence to the effect that because of resistance from the side of the prosecutrix, the appellant Sanjay Das received injury on the bridge of his nose. Therefore, he contended that the learned Court failed to apply its mind and failed to appreciate the evidence in its true and proper perspective. The judgment is entirely perverse and is liable to be set aside.

Mr. Panda, learned Counsel appearing for the respondent/State of West Bengal contended that there is a connection between the injury received by the appellant Sanjay Das which he could not explain, with the incident of rape took place two days after 5.9.2007. Therefore, the learned Court connected the incident with the injury and came to a right decision.

In a case of rape, prosecutrix is the best witness. It is also trite law that the conviction u/s 376 of the I.P.C. can well be recorded on the basis of the sole testimony of the prosecutrix without getting it corroborated by any other evidence. Therefore, it is to be seen what the P.W.1, the prosecutrix has stated in the F.I.R. and thereafter in her statement u/s 164 of the Cr. P. C. and in course of trial.

The F.I.R. has been marked as Ext.1. It says that after the death of her husband, the prosecutrix left her son, aged 6 years, in the house of one of her brother in law''s house. Bablu Das, the husband of the deceased husband of the prosecutrix and his family consisting of wife, three sons, their wives and children had been living in the said matrimonial house where the prosecutrix was living. Bablu Das made some immoral proposals to her to which prosecutrix did not agree and on 5.9.2007 at 1.30 hours, while she was sleeping inside her room, Bablu Das entered into her room. She switched on the light and Bablu Das raped her applying force and threatened her with dire consequences. She could not disclose the fact due to family prestige. Two days thereafter, Sanjay, the eldest son of Bablu Das entered into her room again while she was sleeping at 1.00 hours, raped her and threatened her with dire consequences. On the next date, Sanajit Das another son of Bablu entered into her room while she was sleeping at 1.00 hours, raped her. She informed everything to Mina Das, the wife of Bablu Das who happened to be the sister of the deceased husband of the prosecutrix. She also informed some persons of the locality about the incident. She could not contact her paternal house due to her illness. It has been further stated in the F.I.R. that all the accused persons viz., Bablu, Sanjay and Sanajit subsequently threatened her that in case of disclosure of the incidents, they would oust her from the matrimonial house. Therefore, she could not disclose the fact to anybody. However, gathering courage, she went to the Police Station on 25.9.2007 and reported the incidents, which was recorded by S.I., Abhijit Ghosh, P.W.12 and the case was started.

In course of recording statement u/s 164 of the Cr. P. C., the prosecutrix stated that on 25.09.2007 while she was sleeping in her house, she heard an odd sound and woke up and switched on the light. She found Bablu Das inside her room. She told her to go away. But Bablu applied force and raped her. She fought her best to resist Bablu for committing rape but could not cope with. She also stated that Bablu threatened her that in case of disclosure, he would oust her from the house and would not allow her son to meet her in future. She stated in her statement u/s 164 of the Cr. P. C. that two days thereafter at about 1.30 hours while she was sleeping she also heard odd sound in her room and woke up. She switched on the light and found Sanjay Das inside her room. She stated that Sanjay Das was having a good number condoms in her pocket. She asked her why he came in her room. Sanjay Das thereafter raped her. Sanjay Das also threatened her with dire consequence and that he would not allow her son to meet her again in future. On the next date, at the same time and in the same manner Sanajit another son of Bablu entered into the room and in the same way committed rape on her despite resistance. He also threatened her that in case of disclosure, she would be ousted from the matrimonial house and would not be allowed to meet her son. After a few days, she informed Mina Das and some local people but no one had shown any interest.

The prosecutrix was examined as P.W.1 in this case. She reproduced what she stated in the F.I.R. In her cross-examination, she stated that she went to the Police Station first of all and thereafter, informed the members of her parents'' house. She had given the description of the structure of the matrimonial house and surroundings. It appears therefrom that the matrimonial house is a tenanted house and the landlady was residing in a room situated behind her room. One Hari Debnath was residing in a room with his family. One Parul Das and her family members were also residing in the fourth room. She had also good relations with the occupants of all the nearby premises. She stated further in her cross-examination that she had good relation with her brother-in-law with whom her only son lives. She had disclosed in her cross-examination about the internal family dispute she had while her husband was alive. She also stated in her cross-examination that she had a habit of talking with neighbours and visiting neighbours houses. She stated that police did not seize any bed sheet or wearing apparels. She stated in her cross-examination also that Sanjay and Sanajit raped her after using condom. She also stated that when Bablu entered into her room, she shouted but none came forward to help her. She did not narrate the fact to anybody. She was having her father and elder sister but she did not report the fact to anybody. She informed the incident to her elder brother after lodging the F.I.R. with the Police Station.

The facts stated in the F.I.R., in the Statement u/s 164 of the Cr. P. C. and as witness by the prosecutrix, to be stated precisely, are almost corroborating to each other.

Now, the question is whether this can be believed ? It is a case where no independent witness of the area has come forward to support the version of the prosecutrix. The fact that after commission of alleging rape on 5.9.2007, the prosecutrix slept inside her room remaining the door of her room unlocked or bolted from inside. Even after commission of the second incident, she did not repair the door or locked it from inside while gone for sleeping. She although stated in the F.I.R. that while she was raped, she tried to resist but, she has not stated anything about the resistance offered by her when she was examined as P.W.1. It is not understood how the accused Sanjay and Sanajit entered into her room wearing condom. It is also not understood how they could enter into the room without breaking the door or in any manner. It is also not understood that when she found Bablu, Sanjay and Sanajit inside the room at the odd hours of the night, why she did not raise alarm and why she did not try to oust them from room and shouted for help. She was having a habit of talking with neighbourers and visiting their rooms. The area was thickly populated and the house where she was living was also full of other residents. She could not approach them then and there even after the first incident. She allowed the second incident to be happened. Even after the second incident, she allowed the third incident to be happened without any fuss. This part of the prosecution case is hard to believe. The evidence of Kamal, P.W.2 and his friends are entirely hear say and the learned Court has rightly discarded their evidence. The learned Court did not believe the prosecutrix version as far as accused Bablu and Sanajit are concerned. But accepted and believe the second incident allegedly caused by the appellant, Sanjay only on the ground that he was having one healed up injury on the bridge of his nose. On scanning of the evidence, it is found that the P.W.1 has not stated at any point of time that she caused injury on the bridge of nose of the appellant while he applied force. In view of the statement u/s 164 of the Cr. P.C., the appellant was having many numbers of condoms with him in his pocket. In her statement as P.W.1, she stated that Sanjay, the appellant entered into her room wearing a condom. Sanjay raped her forcefully. She did not resist but only requested him not to do so. Nowhere in the statement u/s 164 of the Cr. P. C., she stated that Sanjay received any injury at that point of time on the bridge of his nose. In the F.I.R., she has also not stated that Sanjay received any injury on the bridge of his nose due to her resistance. Only on that ground, Sanjay Das has been convicted by the learned Trial Court.

The learned Trial Court found that the story of the prosecution is not acceptable on various grounds. It was stated by the prosecutrix that whenever she goes out of her room, she put padlock on the door. If that being the fact, after the occurrence of first incident, she never locked her room from inside using the said padlock to prevent unwanted entry of any person in her room and to protect her from being raped repeatedly.

The learned Trial Court did not believe that although the incident of rape took place on three dates, the prosecutrix was not in a position to report the incident to any of the local people. She also did not request any of the local people to inform the incident to the member of her paternal house. The learned Court considered all these factors and came to a finding that the prosecutrix in order to take revenge on the family of Bablu Das, set the criminal action into motion. The learned Court did not believe the testimony of the prosecutrix as well as the other witnesses on the ground stated clearly in the judgment which this Court also thinks correct and justified. But, the connection of the healed up injury on the nose of the appellant with the alleged second incident of rape made by the learned Trial Court does not appear to be acceptable. Simply because the appellant was having a healed up injury on the bride of his nose, it cannot be said that he committed rape on the prosecutrix and other two incidents prior to that incident and after that incident were not rape because Bablu and Sanajit did not have any such mark of injury on the bridge of their nose. This findings of the learned Court cannot be accepted. The findings that Sanjay Das, the appellant actually committed rape and received injury on his nose at the time of resistance offered by the victim is entirely based on hypothesis as it is not supported by any evidence, whatsoever. Therefore, this Court fails to accept the view taken by the learned Trial Court.

Upon consideration of the evidence on record and the judgment impugned, it appears clearly that the prosecutrix, a widow habituated in sexual intercourse working in shifting duty in a Nursing Home as ''Aya'' made out a cock and bull story for sheer vengeance and out of grudge against Bablu and his family members. She did not act normally and her conduct created doubt as to the genuinity of the prosecution story. There was inordinate delay in lodging the F.I.R which although explained but not satisfactory because she could have done so through any person or neighbour with whom she had good relation. She had internal family dispute with Bablu Das and the family members of Bablu Das and apprehended to be ousted from matrimonial house. She could have informed her elder brother or member of paternal house over phone then and there but she did not venture to do so. She had to wait for 20 days. All these factors together makes the prosecution case not acceptable.

Keeping in mind that the conviction can be recorded on the sole testimony of the prosecutrix without corroboration, I find that the prosecutrix version in this case cannot be relied on and conviction cannot be recorded on the basis of her statement and the statement of her elder brother and some other witnesses as it is not consistent, credible and trustworthy. Unless, the evidence of the prosecutrix is found credible, trustworthy and consistent, conviction on the basis of her sole testimony cannot be recorded. It is already found that the statement of Kamal and his friends are not accepted by the learned Trial Court as being hear say evidence. I find that view of the Court is correct because Kamal was not told about the incident at least not by the prosecutrix. He came to know about the incident from other source. The source was not examined. His friends also have no direct knowledge of the facts. So, the learned Trial Court has rightly discarded their evidence. But the findings of the learned Court that simply because the appellant was having a healed up injury on the bridge of nose, he actually committed rape on the prosecutrix cannot be accepted in the facts and circumstances of the case.

In view of the discussions above, I allow the appeal. The judgment impugned is set aside. The appellant be set at liberty at once and discharged from bail bond.

The L.C.R. alongwith a copy of judgment be sent to the learned Trial Court without delay. Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.