“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 222 OF 2009 (Arising out of SLP (Crl.) No. 1380 of 2008)

Zindar Ali SK      …. Appellant

Versus

State of West Bengal & Anr.          …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. This  is  an  appeal  against  the  judgment  and  order  of  conviction

passed  by  the  Calcutta  High  Court,  whereby,  the  appeal  filed  by  the

accused/Appellant, was dismissed.  The accused was convicted by Fast

Track, Fourth Court, Krishnagar, Nadia for an offence under Section 376 ,

as also an offence under Section 417 of the Indian Penal Code (hereinafter

for short “IPC”).  As per the prosecution case, there was another accused

Naki Mollick in the matter, against whom the Chargesheet was submitted,

but, he being a juvenile, was sent to the Juvenile Court for facing trial.   

1

3. As per the prosecution, accused Zindar Ali SK was trying to marry

with  prosecuterix  Chandmoni  Khatoon  with  the  help  of  Naki  Mollick.

Prosecuterix was working as a weaver and on the day of incident, when

she  was  returning  from  her  work,  the  accused  caught  her,  taking

advantage of the dark and committed rape on her.  The prosecution further

alleged that Naki Mollick abetted the commission of the offence and both

the accused persons threatened to kill her.  The accused committed rape

on the prosecuterix several times forcibly and had also falsely assured to

marry  her.   However,  the  accused  refused  to  marry  the

complainant/prosecuterix  and,  therefore,  the  prosecuterix  informed  the

incident  to  her  family  members and neighbours.   Salish  (a  meeting for

resolving the dispute) was held in the Village on 24.2.2003, wherein, it was

decided that the accused should marry the prosecuterix, however, Zindar

Ali refused to marry the prosecuterix.  A complaint seems to have been

made to the Chief Judicial Magistrate who issued a direction on 10.7.2003

to the police to register an offence.  This became necessary as though she

had approached the police, they advised her to settle the matter amicably

with accused. Ultimately, a Chargesheet was submitted for offences under

Sections 376, 417 and 120-B of IPC.  However, it was found that the other

accused Naki Mollick was a juvenile and his trial, therefore, was separated.

As many as 14 witnesses were examined by the prosecution in support of

the prosecution case, including the prosecuterix, her father and mother.

Some documents were also filed, including the medical reports, age reports

etc.  Doctors were also examined and ultimately, the accused abjured the

2

guilt and claimed that he had been falsely implicated, as he had refused to

marry  the  prosecuterix.   Ultimately,  the  Sessions  Judge  negatived  the

defence and came to the conclusion that the offences of rape and cheating

were proved against the accused, and convicted him on those two counts,

however, he was acquitted of the charge under Section 120-B of IPC.

4. As against this, an appeal came to be filed before the High Court,

however, the High Court has dismissed the appeal and that is how, the

matter has come before us.

5. Shri Bijan Kumar Ghosh, Learned Counsel appearing on behalf of

the Appellant, pointed out that the whole prosecution story was extremely

unnatural  and  weak.   The  Learned  Counsel  pointed  out  that  the

prosecuterix  was  undoubtedly  a  grown  up  girl  and  though  as  per  the

prosecution case, she was raped on 23.2.2003, she not only kept quiet, but

had  also  indulged  in  sexual  intercourse  with  the  accused  again  on

subsequent 2 or 3 days and reported the matter only on 27.2.2003 to the

Police  Station  who  did  not  register  the  matter  and  commenced

investigation only after 5 months.  The Learned Counsel argued that this

delay  was  fatal  and  further  suggested  that  there  was  an  element  of

“consent”  on  the  part  of  the  prosecuterix,  and  as  such,  there  was  no

question of any rape.  The Learned Counsel further suggested that even

otherwise, the absence of  any injury on the person of  the prosecuterix

suggests that the prosecuterix had surrendered to the advances made by

the accused and engaged herself in the intercourse as per her will, and

3

both the Courts below have failed to consider this important aspect.  Lastly,

the  Learned  Counsel  contended  that  in  fact,  there  was  no  Salish  or

meeting and there was no question of the accused refusing to marry the

prosecuterix during such meeting.  The Learned Counsel suggested that

there was in fact, no sexual intercourse, muchless, against the consent of

the prosecuterix and the accused was falsely implicated on account of his

refusal to marry the prosecuterix, who herself wanted to marry him.

6. Both the Courts below have held on the basis of the evidence of the

prosexuterix, as corroborated by the other evidences that there was not

only a sexual intercourse between the accused and the prosecuterix, but

the same was without the consent and against the will of the prosecuterix

and as such, the accused was guilty of rape.

7. We  have  gone  through  the  evidence  led  on  behalf  of  the

prosecution.  The prosecuterix was examined as PW-1 and deposed that

the accused was after her, requesting her to marry him, so also his friend,

the other accused also used to tell her that the accused wanted to marry

her.   She,  however,  refused  to  oblige.   She  further  deposed  that  the

accused  forcibly  caught  her  and  put  napkin  inside  her  mouth  and

committed  sexual  intercourse  against  her  will  and  consent.   She  also

further deposed that the accused had threatened her and also raped her

subsequently for 2 or 3 days.  Her wearing apparels were also torn.  She

deposed that due to fear of her life, she did not disclose the incident of

rape to anybody, however, after 2/3 days of incident, when the accused

4

refused to  marry her,  she came home and reported the incident  to her

parents.  As per her deposition, a Salish was held, where, the accused

declined  to  abide  by  the  decision  taken  in  that  meeting  of  about  his

marrying the prosecuterix.  She identified her wearing apparels, which were

seized  by  the  Police.   She  also  identified  the  accused.   There  is  no

effective  Cross-Examination  to  this  witness.   One  question  was  asked

about her clinical and physical examination.  It was suggested firstly that

she had suffered injuries on her private parts and person.  The witness,

however, stated that there was no bleeding injury, meaning thereby, that

the injuries were insignificant considering that she was medically examined

after  about  6  months.   Such  admission  is  meaningless.   Her  version

regarding rape, however, has gone unchallenged.  She was asked about

the workplace and the boys being there, however, non-disclosure to the

boys  would  only  be  a  natural  behaviour  and  cannot  lead  us  to  the

conclusion that she had consented for the sexual intercourse.  There was

no reason for the poor girl to falsely implicate the accused.  There is no

suggestion of any love-affair with the accused also.  Her version that she

was raped by the accused, goes totally unchallenged.   Her version that

she was forcibly caught and a napkin was put inside her mouth before the

accused had committed rape on her, was a little exaggerated, but it does

not demolish her version that she was raped by the accused.

8. PW-2,  Moshar  SK,  in  his  deposition,  had  spoken  about  the

Chandmoni and her father, telling him that Chandmoni was raped by the

5

accused.  He had also spoken about the village meeting, where, it  was

decided that the accused should marry Chandmoni.  Again,  there is no

Cross-Examination of this witness.  Of course, this witness had stated that

he had not made any statement to the Police, as he was not interrogated.

Anther  witness  PW-3  Tajem SK  (Mallick)  also  spoke  about  the  village

meeting, which was held at the instance of Markam Ali SK, father of the

prosecuterix.  He also claimed that he was not interrogated by the Police.

In his Cross-examination itself, it has come that there were about 200-250

persons  present  in  the  village  meeting,  where,  it  was decided  that  the

accused was guilty.  The other witnesses examined on the question of the

village meeting was Saheb Ali SK and Markam Ali SK, the father of the

prosecuterix.  It will not really be necessary for us to go to the evidence of

the village meeting, where, the accused allegedly admitted that he had the

sexual intercourse, particularly because the evidence of the prosecuterix

on that subject, has remained completely unchallenged and is sufficient to

nail  the  accused.   PW-11  Noorjahan  Bibi,  who  is  the  mother  of  the

Prosecutrix specifically spoke about the prosecuterix’ reporting to her about

the forcible sexual intercourse committed by the accused Zindar Ali.  She

also spoke that when she saw her torn cloths etc., she asked her as to

what had happened, whereupon, the prosecuterix told her about the rape

committed  by  the  accused,  however,  she  was  not  able  to  identify  the

clothes.  She had also spoken about the village meeting.  There is again no

Cross-examination of the witness.   

6

9. As for the medical evidence, from the evidence of the Dr. P.K. Roy,

PW-7, it becomes apparent that the girl was major.  The medical certificate

granted  by the  Doctor  suggests  that  the Hymen was torn  at  6’O clock

position and the rugosity was lost and that the Prosecutrix suggested that

she was assaulted by Zindar Ali SK, about 6 months back.  It is to be noted

that the girl was produced for medical examination only on 8.8.2003.  The

Sessions  Court,  as  well  as,  the  High  Court  have  rightly  accepted  the

evidence of the prosecuterix.   

10. Shri  Ghosh,  Learned  Counsel  for  the  appellant,  pointed  out  that

allegedly, though there was a village meeting Salish, but there was nothing

on record about the same and, therefore, an uncorroborated testimony of

the prosecuterix should not have been accepted by the Courts below.

11. We have seen that  the  prosecuterix  has very  specifically  spoken

about the rape.  It is, undoubtedly true that the First Information Report in

this  case  was  lodged  late,  however,  it  has  come  on  record  that  the

prosecuterix  had  filed  a  petition  under  Section  156(3)  of  the  Code  of

Criminal Procedure on 27.2.2003, on the basis of which, the direction was

issued by the Chief  Judicial  Magistrate,  Krishnagar,  Nakashipara Police

Station,  for  calling  investigation  into  the  said  allegation.   We  fail  to

understand this unusual stance of police.  They high handedly advised the

Prosecutrix  to  “settle”  the matter  amicably.  The High Court  has,  in  our

opinion, very rightly criticized that the First Information Report should have

been registered only on 19.7.2003 and the direction issued by the Chief

7

Judicial  Magistrate,  Krishnagar  on  10.7.2003  should  not  have  been

followed for good long more than 17 days.  All this, undoubtedly, resulted in

the prosecuterix being sent for the medical examination only after 6 months

of the offence.  Very important evidence was therefore, lost.  However, the

High Court came to the finding, on the basis of the evidence of PW-7 Dr.

Roy and the evidence of the prosecuterix, that prosecuterix was subjected

to sexual intercourse.  We do not find anything wrong with that finding.

Once that position is obtained, the only question is whether the said sexual

intercourse was by the accused and whether it was without consent and

will of the prosecuterix.  We feel that since the evidence of the prosecuterix

is acceptable, those findings would definitely go against the accused.

12. It is tried to be suggested that the girl did not complain about rape

even to the medical officer PW-7 and instead, complained only that she

was “assaulted”, and that PW-7 had deposed that the tear was not injury,

as there was no bleeding.  We cannot forget that the girl is an uneducated

rustic person, who had to work to sustain the family.  It  cannot also be

ignored that she had disclosed the facts to her parents whose version has

again gone unchallenged. She had also asserted that she had told about

the rape in the Village Meeting which version was supported by her parents

and other witnesses.  Besides, her medical  examination was conducted

after 6 months of the incident.  We would, therefore, choose to go on the

basis of the evidence of the prosecuterix.  In our view, though the High

Court has given a finding about the village meeting, which was supported

8

by the evidence of  PW-2 Moshar SK,  PW-3 Tajem SK (Mallick),  PW-4

Saheb Ali, as also by PW-6 Markam Ali, the father of the girl, it is really not

necessary to go to that aspect in view of the clinching evidence by the girl.

We  would,  however,  use  that  evidence  as  corroborating  the  fact  of

immediate disclosure of rape by the girl.  It cannot be forgotten that the girl

stuck  to  her  statement  made  before  the  Chief  Judicial  Magistrate  on

13.9.2003,  though that  statement  is  not  a  substantive statement,  which

would only show the consistency in the evidence of the girl.   

13. The shabby quality  of  investigation was severely criticized by the

learned counsel.   There can be no dispute that the investigation in this

case is  not at all satisfactory.  There are discrepancies galore.  However,

in this case, the truthful version of the prosecutrix cannot be ignored.  It is

trite law that the defence cannot take advantage of such bad investigation

where there is clinching evidence available to the prosecution as in this

case.  We, therefore, confirm the finding of the High Court that the accused

is guilty of the offence under Section 376 of IPC.

14. We cannot,  however,  persuade ourselves to  agree  with  the  High

Court about the offence of cheating.  The evidence about the cheating is of

slip-shod nature and not believable.  It is also self-effacing.  After all, the

first act of the sexual intercourse was without the consent and the accused

had thereby, committed rape, however, the version that he gave a marriage

promise, would really go against the prosecution, whereby, it would mean

that the subsequent acts were done with the consent of the girl on account

9

of  the  promise  of  marriage.   We  do  not  think  that  such  could  be  the

approach.  After all, if the promise of marriage was given and the girl had

succumbed  on  that  account,  by  itself,  may  not  amount  to  cheating.

Besides this, the girl has very specifically stated that even subsequently,

she was ravished against her wishes.  Therefore, the theory of promise of

marriage and the consent for  sexual  intercourse will  wither away.  We,

therefore, acquit the accused of the offence under Section 417 of IPC.

15. This takes us to the last argument about the quantum of sentence.

The Courts below have awarded 10 years of imprisonment and a fine of

Rs.5,000.  In our opinion, considering the fact that the incident took place

about 6 years back and the fact that the accused is behind the bars for last

about 5 years, as also poverty on the part of the accused, we feel that the

sentence already suffered would be sufficient.   The sentence of  fine is

however, confirmed.  Fine, if  recovered shall be paid to the Prosecutrix.

She shall be intimated by sending notice to her.  We, accordingly, modify

the sentence.  The appeal is disposed of with this modification.

………………………………..J. (Tarun Chatterjee)

………………………………..J. (V.S. Sirpurkar)

New Delhi;

10

February 6, 2009.

11