The Calcutta High Court condoned a delay of four days in lodging a rape complaint on account of the survivor waiting to discuss the same with her mother-in-law and observed that the freedom and agency of a married woman at the matrimonial home were still restricted.

The Bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta observed that “While one gagged her, the other raped her. Being so overpowered, she was unable to resist. She herself stated in Court she had not suffered injuries during rape. In this backdrop, absence of injuries on her private parts cannot be a ground to disbelieve her version. When two adult males overpower and rape a helpless woman, she would be unable to resist. Under such circumstances, absence of injuries can neither improbabilise the incident nor signify consent on her part.”

In this case, the victim was raped in her matrimonial home when her mother-in-law was away at a relative’s house. The survivor’s father visited her the next day but the complaint was lodged under section 376(2)(g) and Section 506 of IPC, after the survivor discussed the matter with her mother-in-law.

Senior Advocate Sekhar Kr. Basu appeared for the Appellant and APP Madhusudan Sur appeared for the State.

The Court emphasized that a delay in lodging a complaint in sexual offences should be assessed bearing in mind the impact of the offence on the psyche of the survivor and its ramifications in society and concluded that “delay of four days in lodging FIR owing to the absence of mother-in-law is probable and does not affect the credibility of the prosecution case.”

The Court further highlighted that the absence of injuries on her private parts was not a ground to disbelieve her version and observed that “One cannot lose sight of the fact that even in present times, freedom and agency of a married woman at the matrimonial home is restricted. Ordinarily a married woman would not even go to her parental home without intimation or permission from her in-laws. The present case portrays a brutal act of sexual assault on her by the neighbours and a distant relation. Her husband was working abroad. In this scenario, it is not unnatural that she waited for the arrival of her mother-in-law before lodging FIR.”

With regard to issue that Whether the version of the survivor was credible, the Court observed that “It is trite law a conviction may be founded on the evidence of the survivor alone. She is to be treated on par with an injured witness. Furthermore, her deposition has to be assessed with adequate sensitivity bearing in mind the scars an act of sexual trauma leaves behind on the survivor.”

Therefore, the Court said that it was unwilling to discard it by referring to minor contradictions as the deposition of the survivor was a ring of truth and observed that “I am of the opinion version of the survivor does not suffer from patent absurdities or inherent improbabilities so as to render her deposition improbable.”

The Court also took note of the fact that during cross-examination, the accused/appellants brazenly exhibited affidavits claimed to be signed by the survivor and her husband wherein it was averred that she did not have any allegation against the appellants and to this the survivor categorically stated that she was misled to give signatures on the documents.

On examination of the documents, the Court remarked that “Tenor of the documents and the cryptic manner in which they have been prepared clearly show that the documents were manufactured and the survivor and her husband were compelled to sign them. The malevolent influence of the appellants on the survivor and her family is evident and also lends justification to the reasons for delay in setting the criminal law in motion.”

Therefore, the Court upheld the conviction of the two men accused in the case. However, given that they had no criminal antecedents, the sentence imposed was reduced to ten years, and pay a fine of Rs. 25,000/- each, and the third appellant was acquitted.

Accordingly, the appeal was allowed.

Cause Title- Ujjal Sarkar v. The State of West Bengal

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