4-day delay in lodging FIR, lack of injuries not grounds to disbelieve rape survivor: Calcutta High Court

The freedom and agency of a woman in her matrimonial home is restricted even in the present times, observed the Calcutta High Court recently while condoning a four-day delay in lodging a rape complaint on account of the survivor waiting to discuss the matter first with her mother-in-law. [Lankeswar Sarkar and ors v. The State of West Bengal].In its judgment upholding the rape conviction imposed on two men in the case, the bench of Justices Joymalya Bagchi and Ajay Kumar Gupta observed:“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.”.In the case before the Court, the mother-in-law of the survivor was away at a relative’s house when the victim was raped in her matrimonial home. Whereas the survivor’s father visited her the next day, the complaint was only lodged after she discussed the matter with her mother-in-law, the Court was told..In any case, the Court emphasised that a delay in lodging complaints in sexual offence cases should be assessed bearing in mind the impact of the offence on the psyche of the survivor and its ramifications in society..Judged from this perspective as well, a delay of four days in lodging a First Information Report (FIR) owing to the absence of mother-in-law is probable and does not affect the credibility of the prosecution case, the Court concluded..Absence of injuries not ground to disbelieve rape victim: Court.The case further saw the Court highlighting that the absence of injuries on the rape survivor is not a ground to disbelieve her case. The bench, thereby, rejected submissions made by the accused that since there were no injuries on the survivor, it was improbable that she was raped..“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.,” the Court observed..Survivor's testimony to be assessed with adequate sensitivity, bearing in mind the scars of sexual trauma.As per the prosecution, two neighbours had raped the victim late at night when she was alone at home with her minor daughter. One of the accused was also a distant relative, the Court noted. .After a detailed examination of the matter, the Court concluded that the offence against these two accused men had been sufficiently proved to merit their conviction. In doing so, the Court reiterated that a conviction in such cases may be founded on the evidence of the survivor alone..“She is to be treated at 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 … Her (the survivor’s, in this case) deposition is a ring of truth and I am unwilling to discard it by reference to such minor contradictions … 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 said..The Court also took critical note that the two accused had brazenly exhibited manufactured affidavits claimed to have been signed by the survivor and her husband stating that she did not have any allegation against the accused-appellants. During cross examination, the survivor informed the trial court that she was misled to sign these documents, the High Court further noted. In this backdrop, the bench proceeded to remark,“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.".Conviction of two upheld, one acquitted by Court.In view of these, among other, reasons, the High Court upheld the trial court conviction of two men accused in the case. The sentence imposed on the two, however, was reduced from fifteen to ten years’ rigorous imprisonment and ₹25,000 fine, given that they had no criminal antecedents.“No doubt the offence of gang rape is a heinous and deplorable one. However, no physical injuries were found on the survivor. Possibility of reformation and rehabilitation of the appellants cannot be ruled out,” the Court said..Moreover, the High Court acquitted a third man who had been accused of having run into the survivor after the rape and of having allegedly torn off her clothes. .“He was not present in the room when the offence was committed. Even if he was seen in the house immediately after the incident, it cannot be ruled out that hearing the cries of the victim he rushed to the spot and had tried to save her. In his effort to do so, her petty coat came off. This plea finds corroboration from the statement of PW1 before Magistrate … I am inclined to extend the benefit of doubt to him,” the Court said..Senior Advocate Sekhar Basu and advocates Rajdeep Majumder, Pritam roy, Shyanti Podda, Debasis Roy, Kallol Mondal, Debdas Khabba, Krishan Ray, Souvik Das, and Anamitra Banerjee appeared for various appellants.Additional Public Prosecutor Madhusudan Sur and advocate Manoranjan Mahata appeared for the State..[Read Judgment]