Md. Ashique Mistri vs The State Of Bihar on 24 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.21 of 2015
Arising Out of PS.Case No. -27 Year- 2006 Thana -BELAGANJ District- GAYA

1. Md. Ashique Mistri S/o Late Md. Amin Miyan, R/o Village- Laxmipur, P.S.
Belaganj, District- Gaya
…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Surendra Kumar Singh, Adv
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 24-08-2017

Sole appellant, Md. Ashique Mistri has been found

guilty for an offence punishable under Section 376 IPC and

sentenced to undergo RI for 10 years as well as to pay fine

appertaining to Rs. 25,000/ in default thereof, to undergo SI for 1

year additionally, vide judgment of conviction dated 26.11.2014 and

order of sentence dated 28.11.2014 passed by Additional District and

Sessions Judge-3rd, Gaya in Sessions Trial No. 436/2009/406/2006.

2. Name withheld, PW-1 gave her Fard-e-beyan on

22.02.2006 divulging the fact that she happens to be aged about 16

years. As she was suffering from some sort of ailment and for that,

she was being treated. During course thereof, about 7-8 months ago,

she had gone to Patna along with Md. Ashique Mistri who happens

to be her uncle to see Dr. Md. Ejaz Ali. Because of the fact that the

aforesaid doctor used to see patients in the night, they stayed there

after having been seen by the doctor in the following morning, they

returned back. After 15 days, they both visited place of the doctor.
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 2

Doctor had seen her at about 10.00 PM. She slept with her uncle,

Md. Ashique Mistri over roof. While she was asleep, her uncle

began to tease her and then untied her clothe which she protested

whereupon, he said that nothing will happen. He threatened also that

in case of raising alarm, she will have to face dire consequences, as a

result of which, she became very much afraid of and taking

advantageous position, Md. Ashique Mistri committed rape. On the

following morning, while they were returning, he continued with

threatening that in case of discloser, not only she rather her whole

family will be eliminated. She had not disclosed the event of rape to

her family members out of fear. Subsequently thereof, some sort of

differences cropped up in both the family with regard to cash

transaction. About three months thereafter, while she was

accompanying a kid to meet the nature’s call, Md. Ashique Mistri

caught hold of her, took her to the husk room and then committed

rape. At that very moment also, he had threatened her and so she had

not disclosed the event to her family members. About 15 days

thereafter, while she was going to purchase milk, again became

victim of lecherous activity of Md. Ashique Mistri. As she was

indolent, she became unable to perceive regarding her pregnancy at

an earlier moment. About 3-4 days ago, she perceived abnormal

activity in her stomach, on account thereof, she disclosed the event

to her family members whereupon she was taken to a Nurse who

confirmed it a case of pregnancy. Then thereafter, the matter was
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 3

discussed in the village and as per direction of the villagers, this case

has been instituted.

3. On the basis of the aforesaid Fard-e-beyan, Belaganj

PS Case No. 27/2006 was registered, followed with an investigation.

After completing the same, charge-sheet was submitted facilitating

the trial, the subject matter of instant appeal.

4. Defence case as is evident from the mode of cross-

examination as well as statement under Section 313 CrPC is that of

complete denial. It has also been submitted that the victim as well as

her mother happen to be promiscuous women and on account

thereof, their paramours always remain at their place whereupon,

their indulgence in sexual activity ultimately, cost prestige of the

victim by way of pregnancy. As the appellant was protesting their

illegal activity, he has been involved in this false and frivolous case.

However, appellant has not taken pain to examine any witness in his

defence nor exhibited any kind of document.

5. In order to substantiate its case, prosecution had

examined altogether 12 PWs out of whom PW-1, victim, PW-2, Md.

Raza Alam, father of the victim, PW-3 Md. Javed Akhtar, co-villager,

PW-4, Md. Imteyaz, co-villager, PW-5, Md. Faiyaz Ahmad, uncle of

the victim, PW-6, Md. Shahabuddin, uncle of the victim, PW-7,

Aminuddin @ Md. Amin Miyan, co-villager, PW-8, Naushad Akhtar,

FIR attesting witness, PW-9, Md. Akbar, FIR attesting witness, PW-

10, Md. Sarfaraz, FIR attesting witness, PW-11, Md. Mushtak, cousin
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 4

brother and PW-12, Dr. (Mrs.) Sushma Singh as well as had also

exhibited Ext-1, Signature of PW-1 over Fard-e-beyan, Ext-2 series,

signatures of respective FIR attesting witnesses, Ext-3, Medical

Report.

6. While assailing the judgment of conviction and

sentence, learned counsel for the appellant has submitted that

irrespective of suggestion having been given at the end of appellant, it

is an obligation of the prosecution to prove its case beyond all

reasonable doubt. Until and unless, prosecution version is found duly

substantiated then and then only, the obligation having on the part of

the accused to rebut the theme of non consent at the end of the victim

would arise. So, submitted that first of all, it has to be seen whether

the prosecution has succeeded in proving its case. In order to strike

over the same it has been submitted that admittedly, at the time of

occurrence, mother, PW-1 was not present, as father, PW-2, during

intervening period was staying at Dhanbad having been informed by

the mother of the victim whereupon he came. Mother has not been

examined. The prosecution has not explained the reason for her non

examination whereupon evidence of PW-2 became inadmissible. In

likewise manner, it has also been submitted that the Investigating

Officer has also not been examined. From the nature of evidence

having adduced on behalf of prosecution, the same appears to be

capricious whereupon defence case is found prejudiced. On the
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 5

aforesaid score alone, appellant is entitled to be acquitted.

7. Now coming to other aspect, it has been submitted

that from the evidence of PW-1, victim as well as PW-2, her father,

presence of other uncles are there, who had also deposed during trial

negativating the allegation coupled with the fact that their presence

improbabilized the prosecution version to have company of appellant

to carry the victim to Patna. . In likewise manner, the activities so

divulged by the victim at subsequent time without any protest at the

end of appellant even though she went at her place having company of

her mother with whom she might have shared her suffering, if so, is

another circumstance which suggests that she was anyhow, a

consenting party and that being so, her status is to be acknowledged

accordingly and for that, the learned counsel for the appellant drew

attention towards the evidence of PW-12, the doctor who had

estimated the age of the victim to be in between 16-17 years. It has

also been submitted that the aforesaid finding has got variance of plus

minus two years either side and the event going in favour of accused

is to be accepted, on account thereof, majority of the victim should be

confirmed and that being so, it is a fit case whereunder appellant

should be acquitted.

8. Furthermore, it has also been submitted that coming to

the status of the witnesses it is evident that PWs-4, 5, 6, 7, 8, 9, 10 and

11 have not supported the case of the prosecution, more particularly,
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 6

identifying the appellant to have accompanied the victim to Patna as

well as with regard to subsequent event probabilizing an opportunity

to rape the victim and that being so, the evidence of PWs-2, 3 being

hearsay will not improve the fate of the prosecution case. So, the

evidence of PW-1, the victim now remains which, on account of

improbability persisting in her evidence did not inspire confidence.

That being so, the overall situation suggests that prosecution has

failed to substantiate the case, consequent thereupon, the appellant is

found entitled for acquittal.

9. Learned APP confronting the argument having been

made on behalf of the appellant, has submitted that so far pregnancy

of PW-1, the victim is concerned, all the witnesses have reiterated the

same. It is also evident from their deposition that she was unmarried.

Furthermore, PW-1, the victim happens to be consistent over the

activity taken up by the appellant at different occasions. On account of

tender age of the victim, as well as social stigma which, the victim of

rape is to carry coupled with the fact that the victim happens to be

unmarried which might have adverse impact upon her future as well

as having been threatened, at the end of the appellant being immature

whereunder not only she succumbed rather she also failed to disclose

the event at an earlier occasion. However, when she perceived some

sort of abnormality in her physical condition, she disclosed the event

which got confirmed and for that, the victim had disclosed the

appellant to be responsible as she was raped by him. Apart from this,
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 7

it has also been submitted at the end of learned APP that there

happens to be no motive for false implication. In the aforesaid

background, the evidence of victim, which has got primacy, so far

rape is concerned, is to be accepted without corroboration. Moreover,

from the evidence of victim, PW-1, it is apparent that she has not been

cross-examined over occurrence, and that being so, the learned lower

court rightly held guilty, whereupon, judgment of conviction and

sentence recorded by the learned lower court is fit to be confirmed.

10. Before coming to analyze the evidence, certain

salient features coming out from the record, is also to be perceived.

Victim was unmarried and was pregnant at the time of institution of

the case, which might be due to rape or indulging in consensual

physical relationship, and for that, status of victim is also to be

properly ascertained. In likewise manner, inordinate delay in

launching of prosecution is also found exposed.

11. PW-12 is the doctor who had examined the victim

and found her to be pregnant of 27 weeks + 6 days. She had further

disclosed her age to be in between 16-17 years. So far estimation of

age is concerned, it is evident from the evidence of PW-12 that she

being a Gynecologist was not at all specialized on that very score, nor

board of doctors were constituted for ascertaining her age having

presence of orthopedic and radiologist, however, she has reported on

the basis of the x-ray report as well as counting the teeth 7+7 upper as
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 8

well as lower jaw (28 in number). It is evident from her cross-

examination that her finding with regard to pregnancy of PW-1, has

not been challenged. So, pregnancy out of physical sexual relationship

is found duly substantiated.

12. Now coming to the remaining witnesses, it is evident

that PW-4 who had stated that he came to know regarding pregnancy

of the victim but he is unable to say by whom. He had further stated

that the police had recorded his statement but subsequently, he resiled

whereupon was declared hostile. During cross-examination, he had

stated that victim as well as her mother happens to be characterless

where their paramours used to stay.

13. PW-5 is one of the uncles of the victim who had

stated that the victim is his niece. She was being treated at Gaya. Her

father as well as he himself used to accompany her. She was cured.

Subsequently thereof, she again developed pain in her stomach

whereupon she was taken to Patna by Ashique Mistri (appellant) but

he is unable to say as to what kind of sin Ashique Mistri (appellant)

had committed with her. During cross-examination, he had stated that

appellant happens to be his cousin brother, (Mamera). He happens to

be aged about 70 years. He had further stated that he had stated before

the police that victim and her mother happen to be characterless

whereupon the villagers made protest but they never paid heed to it.

The victim suffered pregnancy from her paramours. Appellant has
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 9

been falsely implicated.

14. PW-6 is another uncle of victim who had deposed

that the victim is his niece. She happens to be unmarried but, she has

begotten a daughter. He is unable to say by whom, she conceived. He

further stated that he is unable to say whether the victim had gone to

Patna for treatment or not. He had further stated that he had made

statement before the police. Then thereafter, he was declared hostile.

During cross-examination, at para-5, he had admitted the inter se

relationship with the appellant. He had further disclosed the family

status of the appellant. He had denied in para-6 regarding previous

statement made before the police with regard to status of the victim as

well as her mother to be characterless and on account thereof, they

had promiscuous relationship with other co-villagers as a result of

which, the victim became pregnant.

15. PW-7 is a co-villager who has stated that he does not

know the victim nor with regard to the occurrence and so he was

declared hostile. During cross-examination, he had stated that

appellant happens to be an outsider.

16. PW-8 had stated that he knew the victim. He heard

regarding the occurrence about 4-5 years ago. He came to know from

the villagers that she was impregnated by the appellant whereupon,

the victim had instituted a case. He had put his signature over the

Fard-e-beyan. During cross-examination, he had stated that appellant
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 10

happens to be an outsider. He has children. Some of whom, are major.

Whatever he came to know, he knew from the villagers. He had not

made statement before the police.

17. PW-9 had stated that he knew the victim but he has

got no information with regard to any kind of occurrence having been

committed against her. She had given Fard-e-beyan over which he had

also put his signature. Then was declared hostile. During cross-

examination, he had stated that the appellant happens to be his co-

villager whereupon he had identified him. He had put his signature

over Fard-e-beyan.

18. PW-10 had identified his signature over Fard-e-

beyan, but he narrated that he is unaware with the fact over which the

case has been instituted and so he was declared hostile. During cross-

examination, he had stated that the appellant happens to be an

outsider. The victim’s father resides at Dhanbad.

19. PW-11 had stated that he knew the victim. Firstly, he

denied to have any kind of information however, again stated that he

came to know regarding her pregnancy but he is unable to say by

whom she was impregnated. So, he was also declared hostile. During

cross-examination, he had stated that the victim happens to be her

cousin sister. His uncle used to remain at Dhanbad while his family

member used to stay at the village.

20. PW-3 had deposed that the victim had recorded her
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 11

Fard-e-beyan in his presence over which he put his signature. He had

further stated that on 21.02.2006, they came to know regarding

occurrence whereupon they had gone to victim, inquired from her, she

disclosed that the appellant had committed rape upon her while he had

accompanied her to the place of doctor at Patna as well as in the

village also. She was threatened at the end of appellant over which, a

Panchayati was convened wherein the appellant created nuisance

whereupon, they instructed the victim to lodge a case. He had further

stated that the victim had begotten a girl about 13 months ago. During

cross-examination, at para-6, he had stated that police had not

recorded his statement. About 100 villagers had gone to the Police

Station. He is unable to say as to how many of them had made

statement before the police. At para-7, he had stated that for the first

time, he is deposing before the court regarding the occurrence. Then

at para-8, 9, 10, 11, he had deposed over manner of Panchayati,

persons participated including the appellant. In para-12, he had stated

that Fard-e-beyan of the victim was recorded in their presence over

which, five persons put their signatures. One of them, Shahnawaz

died. Then thereafter, police took away the victim. They returned

back. He had denied the suggestion that during course of Panchayati,

the name of Usman surfaced who impregnated the victim.

21. PW-2 is the father who had stated that at the time of

occurrence he was at Dhanbad. Victim happens to be his daughter

who resides at his native place. She is unmarried. On an information
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 12

he came from Dhanbad. His wife told him that on account of ailment

of victim, the appellant had accompanied her to Patna where he

committed rape. Even at village, the appellant had committed rape as

a result of which, she became pregnant. He took the victim to a nurse

who affirmed the same. Then thereafter, a Panchayati was convened

in the village wherein accused was also present. He declined to obey

the verdict, on account thereof, the instant case has been registered.

Subsequently, his daughter begotten a child who is along with her. It

has also been disclosed that at the time of occurrence, the victim was

aged 16 years. During cross-examination, he had stated that the

accused happens to be his cousin brother (Mamera Bhai). He happens

to be younger to him. He used to remain at Dhanbad where he is a

hawker engaged in biscuit business. Good hospital as well as good

doctors are at Dhanbad. He was informed by his daughter as well as

his wife that she was ill. He had not brought his daughter to Dhanbad

for treatment. Chakand and Bela are the places near to his village

where doctors are available. There happens to be good hospital at

Gaya. He had not brought the victim to Bela, Chakand or Gaya. In

para-8, he had stated that he had not instructed his brothers to

accompany the victim for treatment, however, his wife had requested

even then, his brothers had not acceded. At para-11, he had stated that

all the prescriptions happen to be along with the appellant who torn it.

Some papers have been taken away by the police. He had not gone to

the place of doctor at Patna. He is unaware whether police had gone to
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 13

the place of doctor at Patna for recording his statement as well as

statement of compounder. He had denied the suggestion that the

victim was aged about 24 years at the time of occurrence. He had

further denied the suggestion that his wife as well as the victim

happen to be characterless and having presence of their paramours by

whom, the victim suffered pregnancy.

22. PW-1 is the victim. She had deposed that the

occurrence took place about two years ago. On account of

stomachache she was taken to Patna by the appellant to Dr. Ejaz Ali

where she was attended. After a gap of 15 days, they revisited to the

place of doctor along with the appellant. They arrived at the place of

doctor at 9:00 PM. Thereafter, they stayed there. While she was going

to sleep at the ground floor, she was taken away by the appellant to

the upper floor where they slept. During aforesaid event, the appellant

untied her clothe and committed rape as a result of which she

sustained severe pain. She protested, even then, he continued with his

illegal activity. Then thereafter, the appellant threatened her that in

case of discloser, she will be murdered. On the following morning,

they returned back. During midst thereof, she was again threatened.

Out of fear, she had not disclosed the event to her mother. She had not

accompanied the appellant further to Patna. About three months

thereafter, while she was carrying her younger brother to ease, the

appellant caught her, dragged her to the husk room and committed

rape. During course thereof, again she was threatened and so, she kept
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 14

mum. She became so much apprehensive from the conduct of the

accused that she stopped coming out of her house. After 3-4 months,

unfortunately, when she came out for milk, again she was caught hold

by the accused, he dragged her to the husk room and again raped her.

During course thereof, she was again threatened that in case of

discloser, she along with her family will be eliminated. After some

time, she perceived some sort of abnormality in her stomach

whereupon, she disclosed the event as to how the appellant had

committed rape upon her. The news flashed in the village. His father

came, took her to the doctor who affirmed. There was Panchayati and

then, a case has been instituted. About three months thereafter, she

had begotten a child who is with her. She is still unmarried. In para-8,

9, cross-examination has been made with regard to her family affairs.

In para-9, she had disclosed regarding the status of appellant being an

outsider as well as has got children out of whom, one son and one

daughter are married. In para-10, she had stated that as she was

suffering from pain in stomach, therefore, she had gone to Patna. She

had not shown her ailment to the doctors having at Bela and Chakand.

She had further stated that she had not gone to Patna before the

aforesaid event. She is unaware with regard to status of the doctor.

She had handed over prescription issued by the doctor to the police.

She had gone to Patna along with appellant twice. She had gone with

the accused only. In para-11, she had stated that the clinic of doctor

lies at Mohalla-Bhikna Pahari. The doctor had not disclosed the cause
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 15

of pain. She had further stated that the place where she slept at the

first visit, she had slept at that place on second visit. At both visit the

doctor had seen her in the night as he used to see the patients in the

night. In para-12, she had stated that while she was raped by the

accused, her clothe was soaked with blood. She shouted out of pain.

At para-13, she had stated that other patients were sleeping at the

ground floor while the accused had taken her to the upper floor. She is

unable to disclose the number of patients at the ground floor. None of

the patients came at upper floor on her cry. At para-14, she had stated

that compounder had come. Three persons had come whom she had

disclosed regarding occurrence. In para-15, she had stated that blood

had not fallen over the roof rather it was over the clothe. Her vagina

became torn. No treatment was done for the same. Then thereafter,

she had not cared to get her ailment treated furthermore.

23. In para-16, she had stated that the accused had

committed rape thrice. Once at Patna and twice at her village. It might

be on account of rape having at village, she had conceived.Then had

detailed the event of rape having committed by the accused at the

village. In para-17, she had stated that out of fear, she had not spoken

to her family members as the accused had threatened her. She had

denied the suggestion at para-18 that she had not gone to Patna with

the appellant. She had further denied the suggestion that she along

with her mother happen to be characterless. She has further denied the

suggestion that due to indulgence in sexual activity with her
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 16

paramour, she became pregnant, as a result of which, she has begotten

a daughter.

24. In State of Himachal Pradesh v. Sanjay Kumar as

reported in 2017 Cr.L.J. 1443, the Hon’ble Apex Court has occasion

to deal with the delay in institution of rape case as well as status of the

victim inconsonance with the recognition of the evidence of the

victim. For better appreciation the same is quoted hereinbelow:-

“24. When the matter is examined in the
aforesaid perspective, which in the opinion of this Court is
the right perspective, reluctance on the part of the
prosecutrix in not narrating the incident to anybody for a
period of three years and not sharing the same event with
her mother, is clearly understandable. We would like to
extract the following passage from the judgment of this
Court in Tulshidas Kanolkar v. State of Goa[(2003)8 SCC
590]:

“5. We shall first deal with the question of delay. The
unusual circumstances satisfactorily explained the delay in
lodging of the first information report. In any event, delay
per se is not a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic formula
for discarding the prosecution case and doubting its
authenticity. It only puts the court on guard to search for
and consider if any explanation has been offered for the
delay. Once it is offered, the court is to only see whether it
is satisfactory or not. In case if the prosecution fails to
satisfactorily explain the delay and there is possibility of
embellishment or exaggeration in the prosecution version
on account of such delay, it is a relevant factor. On the other
hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or
vulnerability of the prosecution case. As the factual scenario
shows, the victim was totally unaware of the catastrophe
which had befallen her. That being so, the mere delay in
lodging of the first information report does not in any way
render the prosecution version brittle.”

25. In Karnel Singh v. State of Madhya
Pradesh[(1995) 5 SCC 518], this Court observed that:

“7…The submission overlooks the fact that in India women
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 17

are slow and hesitant to complain of such assaults and if the
prosecutrix happens to be a married person she will not do
anything without informing her husband. Merely because
the complaint was lodged less than promptly does not raise
the inference that the complaint was false. The reluctance to
go to the police is because of society’s attitude towards such
women; it casts doubt and shame upon her rather than
comfort and sympathise with her. Therefore, delay in
lodging complaints in such cases does not necessarily
indicate that her version is false…” 26. Likewise, in State of
Punjab v. Gurmit Singh Ors.[(1996) 2 SCC 384], it was
observed: “8…The courts cannot overlook the fact that in
sexual offences delay in the lodging of the FIR can be due
to variety of reasons particularly the reluctance of the
prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation
of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual
offence is generally lodged…”

27. In the same judgment the status of victim of rape
as well as reliability of his evidence has properly been
discussed under para-31 which is as follows:-

“After thorough analysis of all relevant and attendant
factors, we are of the opinion that none of the grounds, on
which the High Court has cleared the respondent, has any
merit. By now it is well settled that the testimony of a
victim in cases of sexual offences is vital and unless there
are compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking corroboration
to a statement before relying upon the same as a rule, in
such cases, would literally amount to adding insult to
injury. The deposition of the prosecutrix has, thus, to be
taken as a whole. Needless to reiterate that the victim of
rape is not an accomplice and her evidence can be acted
upon without corroboration. She stands at a higher pedestal
than an injured witness does. If the court finds it difficult to
accept her version, it may seek corroboration from some
evidence which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to equate
one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It
would be adding insult to injury to tell a woman that her
claim of rape will not be believed unless it is corroborated
in material particulars, as in the case of an accomplice to a
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 18

crime. Why should the evidence of the girl or the woman
who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? The plea about lack of
corroboration has no substance {See Bhupinder Sharma v.
State of Himachal Pradesh[(2003) 8 SCC 551]}.

Notwithstanding this legal position, in the instant case, we
even find enough corroborative material as well, which is
discussed hereinabove.”

25. Now coming to the facts of the case, it is admitted

that appellant is not stranger to the family rather he happens to be

Mamera Bhai of father of the victim and on account thereof, has got

access in the family. Furthermore, the aforesaid event has been

considered by the family members wherein the victim was entrusted to

the appellant for having her treated at Patna. In likewise manner, the

status of the victim being unmarried is also not under controversy.

Further her pregnancy and giving birth to a female child subsequently,

is also found duly acknowledged.

26. In likewise manner, happens to be status of the

victim. Times without number the Hon’ble Apex Court had directed

that the age of the victim could not be ascertained by way of medical

evidence rather it should be in accordance with Rule 12 of the

Juvenile Justice Act wherein age of the delinquent is being ascertained

as held in Jernail Singh v. Haryana 2013 Cr.L.J. 3976 as under para-

20 which is as follows:-

“20. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12 of
the Juvenile Justice (Care and Protection of Children)
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 19

Rules, 2007 (hereinafter referred to as the 2007 Rules).
The aforestated 2007 Rules have been framed under
Section 68(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Rule 12 referred to
hereinabove reads as under :

12. Procedure to be followed in determination of
Age.? (1) In every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the case
may be the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or child or
a juvenile in conflict with law within a period of thirty
days from the date of making of the application for that
purpose.

(2) The court or the Board or as the case may be
the Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and send
him to the observation home or in jail.

(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining .

(a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year.

and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 20

record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in
conflict with law.

(4) If the age of a juvenile or child or the juvenile
in conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the court or the Board or
as the case may be the Committee shall in writing pass
an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of section 7A,
section 64 of the Act and these rules, no further inquiry
shall be conducted by the court or the Board after
examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also
apply to those disposed off cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub- rule(3) and the Act,
requiring dispensation of the sentence under the Act for
passing appropriate order in the interest of the juvenile in
conflict with law.

Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are
of the view that the aforesaid statutory provision should
be the basis for determining age, even for a child who is
a victim of crime. For, in our view, there is hardly any
difference in so far as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the
2007 Rules, to determine the age of the prosecutrix VW-
PW6. The manner of determining age conclusively, has
been expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of a child
is ascertained, by adopting the first available basis, out of
a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available, would conclusively
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 21

determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the
concerned child, is the highest rated option. In case, the
said certificate is available, no other evidence can be
relied upon. Only in the absence of the said certificate,
Rule 12(3), envisages consideration of the date of birth
entered, in the school first attended by the child. In case
such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration, for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in
the absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the concerned
child, on the basis of medical opinion.

27. In the case of Mahadeo v. State of Maharashtra as

reported in (2013) 14 SCC 637 wherein it has been held as follows:-

11. Though the learned counsel for the appellant
attempted to find fault with the said conclusion by
making reference to the evidence of PW 8, the doctor,
who examined the prosecutrix and who in her evidence
stated that on her examination she could state that the age
of the prosecutrix could have been between 17 to 25
years, it will have to be held that the rejection of the said
submission even by the trial court was perfectly in order
and justified. The trial court has found that to rely upon
the said version of PW 8, the doctor, scientific
examination of the prosecutrix such as ossification test to
ascertain the exact age should have been conducted which
was not done in the present case, therefore, merely based
on the opinion of PW 8, the age of the prosecutrix could
not be acted upon.

12. We can also in this connection make reference
to a statutory provision contained in the Juvenile Justice
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 22

(Care and Protection of Children) Rules, 2007, where
under Rule 12, the procedure to be followed in
determining the age of a juvenile has been set out. We
can usefully refer to the said provision in this context,
inasmuch as under Rule 12(3) of the said Rules, it is
stated that:

“12. (3) In every case concerning a child
or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or,
as the case may be, by the committee by seeking
evidence by obtaining–

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;”

Under Rule 12 (3) (b), it is specifically provided that
only in the absence of alternative methods described
under Rules 12 (3) (a) (i) to (iii), the medical opinion can
be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in
our considered opinion, the same yardstick can be rightly
followed by the courts for the purpose of ascertaining the
age of a victim as well.

13. In the light of our above reasoning , in the case on
hand, there were certificates issued by the school in
which the prosecutrix did her Vth standard and in the
school leaving certificate issued by the said school under
Exhibit 54, the date of birth of the prosecutrix has been
clearly noted as 20.05.1990, and this document was also
proved by PW 11. Apart from that the transfer certificate
as well as the admission form maintained by the Primary
School, Latur, where the prosecutrix had her initial
education, also confirmed the date of birth as
20.05.1990. The reliance placed upon the said evidence
by the courts below to arrive at the age of the prosecutrix
to hold that the prosecutrix was below 18 years of age at
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 23

the time of the occurrence was perfectly justified and we
do not find any good grounds to interfere with the same.

28. In State of Madhya Pradesh v. Anoop Singh as

reported in (2015) 7 SCC 773, the same principle has also been

followed by the Hon’ble Apex court as held in the case of Mahadeo v.

State of Maharashtra (supra).

29. In spite of the same, the age of the victim has been

ascertained at the end of PW-12, the doctor, Gynaecologist without

having assistance of Radiologist as well as other specialized wings.

Contrary to it, her age is found properly disclosed to be as 16 years at

the time of occurrence. Moreover, that has got no relevance in the

background of the fact that neither it has been pleaded at the end of

the appellant nor suggested that the victim was major and was a

consenting party. In the aforesaid facts and circumstances of the case,

two alternative options are left for proper consideration, whether there

happens to be cogent reason for false implication. It is evident that

inspite of having the witnesses declared hostile, appellant failed to

draw that both the families were at the loggers head. Though in the

Fard-e-beyan, some sort of discloser has been made which, during

course of evidence, PW-1, the victim had left but surprisingly, neither

her attention has been drawn towards the same nor there happens to

be cross-examination at the end of the appellant on that very score.

Suggestion has been brought up that the victim and her mother were
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 24

characterless which, from the mouth of some of the witnesses who

were declared hostile, been brought up on record but again the same is

not at all found properly placed as neither DW has been examined on

that very score nor there happens to be specific assertion during

course of statement recorded under Section 313 of the CrPC. Even

being characterless, in absence of motive for false implication, it

became highly improbable that the victim of rape will implicate other

than the actual accused, who had ruined her by an act of rape that too,

over an adolescent.

30. Contrary to it, even excluding the evidence of other

PWs, the victim is consistent with regard to rape having committed

upon her by the appellant and most surprising, during cross-

examination, the victim has not been tested at least with regard to two

incidents one while she was going with child and another when she

was going to milk, during course of which she was dragged and raped

in a husk room. She even not been cross-examined over location of

husk room where she was raped at two different occasions.

31. In Gian Chand others v. State of Haryana reported

in 2013(4) PLJR 7 (SC) it has been held:-

11. The effect of not cross-examining a witness on

a particular fact/circumstance has been dealt with and explained by

this Court in Laxmibai (Dead) Thr. L.Rs. Anr. v. Bhagwanthuva

(Dead) Thr. L.Rs. Ors., AIR 2013 SC 1204 observing as under:
Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 25

“31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition, that if
a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his
statement by drawing his attention to that part of it, which
has been objected to by the other party, as being untrue.
Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of
the statutory provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite party to
cross-examine a witness as regards information tendered
in evidence by him during his initial examination in chief,
and the scope of this provision stands enlarged by Section
146 of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that
the version of events provided by him, is not fit to be
believed, and the witness himself, is unworthy of credit.
Thus, if a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same is
essential to ensure fair play and fairness in dealing with
witnesses.”

(Emphasis supplied)

32. The part which has not been challenged by way of

cross-examination would tantamount to an admission. So far, non

examination of mother is concerned, that has got no bearing as the

defence could not be able to place the relevant material to suggest that

on account of non-examination of mother of the victim, the

prosecution case could not be accepted.

Patna High Court CR. APP (SJ) No.21 of 2015 dt.24-08-2017 26

33. So far as non examination of Investigating Officer is

concerned, really from the facts and circumstances of the case, it is

apparent that it is not the defence rather the prosecution who has

suffered in the background of the fact that majority of the witnesses

had gone volte face. Furthermore, as the victim has not been cross-

examined over rape having committed in the husk room, on account

thereof, non examination of Investigating Officer, certainly could not

cause prejudice to the accused.

34. Giving anxious consideration to the evidence available

on the record, it is found and held that prosecution succeeded in

substantiating its case and that being so, judgment of conviction and

sentence recorded by the learned lower court is, hereby, affirmed.

Appellant is on bail, hence his bail bond is cancelled directing him to

surrender before the learned lower court to serve out remaining part of

sentence failing which, the learned lower court will proceed against

the appellant in accordance with law.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 29.08.2017
Transmission 29.08.2017
Date

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