'Underwent A Traumatic Experience, Was Panic Stricken & Disoriented': Calcutta HC Dismisses Plea Of Delayed Lodging Of FIR, Upholds Conviction Of Gang Rape

The Calcutta High Court has recently observed that a delay of a few hours in lodging of the FIR by a victim of gang rape will not vitiate the prosecution case since it is natural for the victim to remain disoriented and confused after having gone through such a traumatic experience thereby justifying such a delay. 

A Bench comprising Justice Joymalya Bagchi and Bivas Pattanayak was adjudicating upon an appeal against a judgment of the concerned Sessions Court convicting the appellants for the offence of gang rape under Section 376(2)(g) of the IPC. 

During the proceedings, it had been argued on behalf of the appellants that the case of the prosecution is shrouded with suspicion as there is immense delay in lodging of the FIR. However, the Court dismissed such a contention after noting that the incident had taken place May 17, 2011 at 2pm and the FIR had been lodged on the same day at 9:15pm and thus there had been a delay of only a few hours. 

Acknowledging that it is natural for a victim of gang rape to be disoriented and confused thereby causing a delay in lodging the FIR, the Court underscored further, 

"The victim underwent a traumatic experience of sexual assault and was panic stricken. She was confused and disoriented as to what would bring succour to her and naturally she waited for arrival of her husband who was in his office. After the arrival of her husband and on giving a cool thought she went to the police station to lodge complaint in the evening around 8.30/9PM. This obviously has led to delay of few hours in lodging of the FIR. There is no case of embellishment or concoction of facts in the FIR due to such delay."

Reliance was also placed on the Supreme Court judgment in State of Chhattisgarh v. Derha to hold that even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case.

Background 

It had been contended that on May 17, 2011 while the victim was returning after offering puja at Tulsipur village both appellants had committed gang rape upon her. The victim had further deposed that one of the appellants had also threatened to kill her and her son by putting 'hasua' on the throat of her son. After commission of the crime, the appellants had fled away. 

Thereafter, the victim had informed about the incident to her mother-in-law and sister-in-law. Consequently, her mother-in-law had informed about the incident to her elder brother-in-law, who in turn informed it to her husband. After, the victim's husband returned home, she along with her husband and sister-in-law went to Murarai police station and lodged a written complaint. Upon completion of investigation police submitted charge sheet under Section 376(2)(g) of the IPC against the appellants.

Observations 

Pertinently the Court dismissed the contention of the appellants that the victim had deposed to one Swapan Mondal who had helped the victim to reach home after the incident that somebody had only pulled her saree and that no rape had been committed. 

Opining that a victim would naturally have reservations about narrating her trauma of sexual assault to an outsider, the Court observed further, 

"Be that as it may, I am unable to accept such proposition inasmuch as generally a victim of rape would only narrate her terrible and unpleasant experience to the person of her confidant and trust and none else. Accordingly, the victim had inhibition in narrating her trauma of sexual assault to PW16, Swapan Mondal who is an outsider and therefore her not divulging the incident to PW16, Swapan Mondal is quite natural."

Upon perusal of the rival submissions and the evidence on record, the Court upheld the conviction of the appellants for the offence of gang rape under section 376(2)(g) of the IPC. It was further held that there is no cogent evidence had been submitted by the defence to show that the incident of rape was consensual and thus the statutory presumption under Section 114A of the Evidence Act would hold good. 

The Court however proceeded to reduce the sentence imposed upon the appellants by the Trial Court. The concerned Trial Court had ordered for the appellants to suffer rigorous imprisonment for life and to pay fine of Rs.20,000 each.

It was however underscored that since the instant case is a crime against women, an in adequate sentence in such an offence would be an assault on the rights of the victim but also the society in general.

"At the outset it is noted that the aforesaid offence is a crime against women which is direct insult to the human dignity of the society. Thus imposition of any inadequate sentence in such offence not only results in injustice to the victim and the society in general but also stimulates criminal activities. While considering the appropriate punishment the court has not only to keep in view the rights of the criminal/accused but also the rights of the victim who suffers in the hands of the perpetrator of crime", the Court averred. 

The Court noted that the appellants do not have any criminal antecedents or prior convictions and thus keeping in mind the aggravating as well as mitigating circumstances, the Court held that a term of 10 years of rigorous imprisonment with fine of Rs.10,000/- each will be commensurate with the nature of offence.

"Accordingly, the sentence of rigorous imprisonment for life imposed in respect of Section 376(2)(g) of the Indian Penal Code with fine of Rs.20,000/- each against the appellants is reduced to rigorous imprisonment for a term of 10 years with fine of Rs.10,000/- each. The default clause as imposed by the trial court is maintained. The sentence in respect of offence under Section 376(2)(g) of the Indian Penal Code is modified to the aforesaid extent", the Court directed. 

Case Title: Sariful Sk. & Anr v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 82

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