- (1.) THE accused to Kumar Mondal alias Amar has been convicted under section 376 the Indian Penal Code and sentenced to R. I. for eight years and pay fine of Rs. looo/-, in default, to suffer R. I. for a further period one year by the learned Assistant Sessions Judge, Birbhum by his judgment and order dated 22. 12. 78. It is this order of conviction and sentence which is under challenge in this appeal. Succinctly put, the case of the prosecution was that on aswin 1384 B. S. corresponding to 5th October 1977 at about 2. while the victim girl, Sitala Bagchi was cutting grass in Chouka near the tank Salgere at village Demuria, the accused grabbed from behind, snatched away the sickle from her hand and thretened her with dire consequences if she shouted. The accused then took Sitara to a nearby ail and ravished her against her will. The victim girl returned home, reported the incident to her parents, brothers and there after to some neighbours. On the following day, that is on 6. 10. 77 a written complaint was submitted to the O. C. , Khoirasole P. S. District Birbhum which was treated as the FIR Ext. 2 and on the basis of which Khoriasole P. S. Case No. 6 dated 6. 10. 77 under section 376 IPC was started against the accused. S. I. of Police Brajadulal Sarkar, who took up the investigation of the case, visited village Demura, prepared a sketch map Ext. 3, seized the wearing apparels produced by Sitala under a seizure list Ext. 1 and examined some witnesses. The FIR named accused absconded till 20. 10. 77 on which date he was arrested at village Palasbandi. The victim girl and the accused, were produced before the D. M. O. and the Radiologist attached to Suri Hospital and the wearing apparels of Sitala were sent to the Chemical Examiner for examination and report. The investigation resulted in a charge sheet, a trial and eventually in a conviction and sentence in the manner hereinbefore stated.
(2.) MR. Balai Chandra Roy, while challenging the propriety of the impugned order of conviction and sentence, set forth for our consideration the following infirmities in the prosecution case, namely, (1) that the prosecutrix is untruthful (2) that the alleged corroborative evidence of P. W. s 2,3 and 6 is in admissible under section 157 of the evidence Act and (3) that judged by the yardstick of probability the prosecution case of the accused committing rape on the victim girl is highly improbable. It was next contended that the failure of the prosecution to produce independent and respectable witnesses of the locality and the delay in lodging the F. I. R. lend support to the strong suspicion that the accused has been implicated falsely after a good deal of deliberation. In support of the contentions aforesaid, Mr. Ro relied upon the two decisions respectively reported in AIR 1983 SC 506 (Bhugdomal Gangaram and Ors. v. State of Gujarat) and 1948 (1)All England Reports 551 (R. V. cummings ).
(3.) THE main prosecution evidence consisted of the testimon of P. W. s 1,2,3 and 6. P. W. I Sitala is the victim girl, P. W. 2 Naba the father and P. W. 3 Ajit alias Atu and P. W. 6 Gosai are the brother of P. W. I. The prosecutrix Sitala, a 20-year old married woman Was living with her parents since the desertion by her husband 3/4 year back. She is a poor illiterate rustic woman who was earning her live hood by cutting grass and doing cultivation works. The occurrence is stated to have taken place on a field at the outskirts of village De. muria and the time was midday. As this was not the cultivation season at that hour of the day none was expected to be present near abort that place. It, is probable that the accused considered the situate ideal for the outrageous act. The victim girl has stated how the accused raped her and how the accused warned her not to shout on pain being severely dealt with. From the (field the victim girl straight went home and related the incident to her parents and then to her brothers. She reported the incident to P. W. 8 Sujit and went to the thana along with her father to submit the written complaint. She produced the wearing apparels and pointed out the place of. occurrence to the I. O. when the latter had been to the village for investigation. Ail these facts' show consistency of conduct on her part. The statement made by P. W. I before the Court has been substantially corroborated by her statement in the FIR. The argument that while in her examination in-Chief P. W. I has stated that she reported the incident to her father and brothers, in her cross-examination she deposed that she related the same to her mother first who in turn communicated it to her husband (P. W. I's father) and other brothers, has little substance in it. This contradiction is neither fatal, nor does it shake the credibility of the witness. P. W. I has categorically stated that the returned home to her parents and reported the incident to her father and brothers. The statement clearly indicates that when she related the incident for the first time both the father and the mother were present and if we. take note of the fact that an illiterate rustic woman had come to depose after a time-lag of fourteen months, the discrepancy appears to be natural.;