LexZINDAR ALI SK versus STATE OF WEST BENGAL & ANR.
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[2009] 1 S.C.R. 968 A ZINDAR ALI SK -r~ v. STATE OF WEST BENGAL & ANR. (Criminal Appeal No. 222 of 2009) B FEBRUARY 6, 2009 [TARUN CHATIERJEE AND V.S. SIRPURKAR, JJ.] PENAL CODE, 1860: c ss. 376 and 417-Accused committing rape on prosecutrix-Later assuring to marry her repeatedly committing sexual intercourse with her-Ultimately, refusing to marry her-Police declining to register FIR-On direction of Magistrate case registered-Conviction by trial court- D Affirmed by High Court-HELD: On the basis of evidence of prosecutrix as corroborated by other evidences, both the courts below rightly held the accused guilty of rape-But, offence u/s 417 not made out- Conviction u/s 376 upheld- Keeping in view the facts and circumstances of the case, E sentence of 10 years RI reduced to the period already undergone which was about 5 years-Fine as imposed by trial court to be paid to prosecutrix - Discrepancies in investigation - Effect of. The appellant alongwith another person, namely, F 'NM' were prosecuted for offences punishable u/ss 376, 417 and 120-8 IPC. The prosecution case was that the • appellant, with the help of 'NM', approached the prosecutrix, who was working as a weaver, and asked her to marry him but she refused. In the evening of 23-2- G 2003 when it was dark and the prosecutrix was returning from the work, the accused caught hold of her and ravished her. Thereafter, the appellant assured to marry her and committed sexual intercourse with her several times. Later, when the appellant refused to marry the H 968 ZINDAR ALI SK v. STATE OF WEST BENGAL & ANR. 969 --+- prosecutrix, she narrated the incident to her family A members. A meeting was held in the village and the appellant was asked to marry the prosecutrix, but he refused. The police was approached but they advised to settled the matter amicably. Then a complaint was made and, on the directions of the Chief Judicial Magistrate, the 8 police registered the case. During the trial, accused 'NM' ... was found to be a juvenile and his trial was separated . The trial court convicted the appellant of the offences punishable u/ss 376 and 417 IPC. The High Court having ) affirmed the judgment of the trial court, the appeal was c filed. Disposing of the appeal, the Court HELD: 1.1. Both the Courts below have held on the basis of the evidence of the prosexuterix, as corroborated D by the other evidences, that the accused-appellant had sexual intercourse with the prosecutrix, without her consent and against her will and, as such, he was guilty of rape. [Para 6) [973-H; 974-A] 1.2. The prosecutrix was examined as PW-1 and she E 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 deposed that the accused forcibly caught her and committed sexual F - intercourse against her will and consent. She also further deposed that the accused had threatened her and also raped her subsequently for 2-3 days. As per her deposition, a meeting was held, where the accused G declined to abide by the decision taken in the meeting ' -t about his marrying the prosecutrix. There is no effective cross-examination of this witness. Her version that she was raped by the accused, goes totally unchallenged. [Para 7] [974-B-H] H 970 SUPREME COURT REPORTS [2009] 1 S.C.R. A 1.3. PW-2, in his deposition, deposed about telling the father of the prosecutrix that she was raped by the accused. He also deposed about the village meeting, where it was decided that the accused should marry the prosecutrix. Again, there is no cross-examination of this B witness. It will not really be necessary to go into the evidence of other witnesses including the father of the prosecutrix who stated about the village meeting, where the accused allegedly admitted that he had the sexual intercourse with the prosecutrix, particularly because her c evidence in that regard has remained completely unchallenged and is sufficient to nail the accused. PW- 11, who is the mother of the prosecutrix, specifically spoke about the prosecutrix' reporting to her about the forcible sexual intercourse committed by the appellant. 0 There is again no cross-examination of the witness. [Para 8] [975-8-G] 2. It is true that the first information report in the case was lodged late. However, it has come
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