GIRISH CHANDRA GUPTA,C.J. - (1.) The appeal is directed against a judgement and orders dated 29th May, 2008 and 31st May, 2008 by which the 5th Court of Additional Sessions Judge, Nadia in Sessions Trial No (iv) of May 2006 arising out of Sessions Case No. 8 of March, 2006 in connection with F.I.R. No.102 of 2001, Karimpur Police Station within the district of Nadia convicted the sole accused for an offence punishable under Section 417 of IPC and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for another two years and also under Section 376 of IPC sentencing him to rigorous imprisonment for a period of 10 years as also to pay a fine of Rs.20,000/- in default to suffer rigorous imprisonment for another 4 years for an offence punishable under Section 376 of the Indian Penal Code.
(2.) The facts and circumstances of the case briefly stated are as follows:- The F.I.R. was lodged on 12th August, 2001 alleging that on 10th Falgun, 1407 B.S. corresponding to 22nd January, 2001 while the victim was alone in her house and was sleeping, the accused entered into her room and forcibly committed rape on her. Her attempt to scream was foiled. The accused subsequent to the aforesaid incident consoled her by saying that he would marry her. On that pretext, he continued to have sexual intercourse with the victim. She in consequence whereof conceived. The accused, however refused to marry her. The pregnancy was five months old when the F.I.R. was lodged. Charges were framed under Section 376 and 417 of IPC. Ten witnesses were examined which include the victim (P.W.1), her father (P.W.4), her mother (P.W.5), Dr. Patra (P.W.7), Mr. Pramanik, Sub-Inspector of Police (P.W.9) and Mr. Das (P.W.10), the investigating officer. Rest of the witnesses were the co-villagers: Netai Pahari (P.W. 2), Kajal Pahari (P.W.3), Subodh Kumar Dey (P.W. 6) and Naru Haldar (P.W. 8). Each one of them turned hostile. Mr. Basu, learned senior advocate appearing for the appellant made the following submissions:- (a) The incident took place on 22nd February, 2001 whereas the F.I.R. was lodged on 12th August, 2001. He submitted that the delay in lodging the F.I.R. makes the case of the prosecution unbelievable. (b) There is an admission by the victim during her cross-examination that the accused never gave any assurance to marry her. (c) The victim during her cross-examination also admitted that she did not state in her written complaint that the accused used to have sexual intercourse with her, in consequence whereof she became pregnant. (d) He submitted that the case of the accused is that the victim was married twice prior to the alleged incident which though was denied by the victim has been admitted by P.W. 6, during his cross-examination by the defence. (e) The P.W.2 was also suggested as regards earlier marriages of the prosecutrix which he denied but the I/O during his examination admitted that the P.W.2 had told him during his examination under Section 161 that the victim was married twice prior to the alleged incident. (f) The victim was a married woman. She was 20 years old at the time of the alleged incident. The learned Trial Court has also in its judgement referred to the victim as a married women. (g) No scientific test was conducted to establish that the accused was the biological father of the child born to the victim. Mr. Ahmed learned advocate appearing for the State has disputed the submissions made by Mr. Basu. He submitted that the victim, in this case is an illiterate rustic woman. She, as a matter of fact, is a tribal. According to him, the evidence taken as a whole proves the case of prosecution both under Section 417 and 376 beyond reasonable doubt. We have considered the respective submission and examined the evidence on record from which the following transpired. I. The victim during her examination-in-chief deposed, inter alia as follows:- "(a) I am a resident of Routhbari which is within P.S. Karimpur. I stay alone in the house. One year ago at night while I was sleeping in my room, Gopal Mondal (identifies) entered my room, forcibly caught hold of me and committed rape on me. (b) Thereafter on several occasions accused committed sexual intercourse with me against my will in consequence of which I became pregnant and one male issue was born to me. That son is now 1 1/2 years old. Excepting the accused no one else had sexual intercourse with me. I reported the incident at Karimpur P.S. in writing. I cannot say the name of the scribe but I put L.T.I. on it after its contents were read over to me. (c) The accused had sexual intercourse with me on the pretext that he would marry me. After I became pregnant I requested to him to marry me but he refused. The accused married some other girl."
(3.) We have divided the material portion of her deposition in groups for the convenience of discussion. Her deposition, as regards the forcible rape on 22nd February, 2001 has remained uncontroverted. There is no cross-examination on that aspect of the matter, except for a suggestion that her deposition to that extent was false. The aforesaid deposition of the victim is corroborated by the written complaint which has been marked as Exhibit -2. Absence of any cross- examination whatsoever, on that aspect of the matter is a pointer to show that the learned counsel cross-examining her was conscious of the fact that this part of her deposition was true. He, therefore, avoided to put any question on that aspect of the matter. Reference in this regard may be made to the judgement in the case of - A.E.G. Carapiet -Vs- A. Y. Derderian reported in AIR 1961 Cal 713 wherein a Division Bench of this Court quoted with approval the following views from an English judgement. "To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to." ;