IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.268 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- SARAN

Anwar Hussain S/O Abdul Qadir R/O village Rasulpur, P.S. Khaira, Distt.- Saran at
Chapra
…. …. Appellant
Versus
State of Bihar
…. …. Respondent

Appearance :

For the Appellant : Mr. Ranbir Singh (Amicus Curiae)

For the Respondent : Mr. Bipin Kumar (A.P.P.)

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 05-03-2018

The sole appellant stands convicted under Section 376 of

the Indian Penal code and sentenced to undergo R.I. for ten years,

fine of Rs.10,000/- payable to the victim girl and in default to

undergo S.I. for one year.

2. The prosecution case as per the complaint petition

lodged by P.W.4 Md. Taiyab in short is that in connection with his

job, he was living at Delhi and his wife and daughter aged about 15

years were living at his house and he had engaged the appellant

(Anwar Hussain) for tuition to his daughter, Shahnaz Khatoon

(victim). The appellant is his nephew (Bhanja) and his daughter

Shahnaz Khatoon started studying either in his house or in the house

of the appellant. It is also alleged that in course of tuition, appellant

used to talk about “I;kj eksgCcr” and the mother, brother and father of
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the appellant no.1 who are also accused in this case used to talk

about the marriage of his daughter with appellant and assured also

and on that assurance, the appellant had made physical relationship

with his daughter. It is also alleged that the intercourse was seen by

Haleem Khatoon (P.W.3) and that came to his knowledge also.

Further prosecution story is that when he enquired about it the

appellant and other accused persons assured to get the appellant

married with his daughter and when he went to their house, they

refused to get his son married with the victim girl and sent his son to

Delhi.

3. The aforesaid complaint petition was sent to the police

under Section 156 (iii) of the Cr.P.C. for lodging the FIR; on that

basis Khaira P.S.Case No.193 of 1996 under Sections 406 and 376 of

the IPC was registered against the appellant and others, police after

investigation , submitted charge-sheet against the appellant and other

accused persons and cognizance of the case was taken and ultimately

the case was committed to the court of sessions, which traveled to the

file of Sri Bipin Dutta Pathak, XIth Addl. Sessions Judge, Saran at

Chapra for trial and disposal.

4. During trial, the charges were framed under Section 376

of the IPC against the appellant and under Section 406 of the IPC

against the appellant and other accused persons.
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5. In support of the prosecution case, eight witnesses have

been examined, they are – P.W.1 Abdul Mannan, P.W.2 Md. Hasan,

P.W.3 Haleema Khatoon, P.W.4 Md. Taiyab (informant and father of

the victim girl) P.W.5 Shahnaz Khatoon (victim girl), P.W.6

Birendra Rai, Advocate Clerk, who proved Ext. 3 (Formal FIR), Ext.

4 to 4/4 (signature of Advocate on complaint), P.W. 7 Dr. Pratima

Gupta, who examined the victim girl along with Dr. Anita

Shrivastava and proved Ext.5 and 5/1 (medical report) and P.W.8

I.O. of the present case, proved Ext.6 (forwarding on complaint).

6. Besides that; following documents have been admitted

into evidence: Ext.1 signature of Md. Tiayab on complaint No.628 of

1996, Ext. 2 signature of Shahnaz Khatoon in her statement under

Section 164 Cr.P.C., Ext.3 formal FIR written by A.S.I Ram Sakal

Das, Exts. 4 to 4/4 signature of Rajkishroe Ojha, Adv. on complaint

petition, Ext. 5 medical report, Ext. 6 signature and writing of Braj

Bhusan Singh on FIR and Ext.7 case diary.

7. On behalf of the defence, neither oral nor documentary

evidence has been adduced. The leaned trial court on conclusion of

the trial has convicted the appellant under Section 376 IPC and

acquitted the appellant and other accused persons from the charges

under Section 406 of the IPC and sentenced the appellant as stated

above.

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8. Being aggrieved by the impugned judgment of

conviction, the present appeal has been filed.

9. Nobody appears on behalf of the appellant on repeated

calls and as such, Sri Ranvir Singh, Advocate has been appointed as

the Amicus Curiae to assist the Court.

10. Contention of the learned Amicus Curiae is that, the

prosecution has failed to establish the fact that the girl was minor at

the time of occurrence rather evidence of the Doctor shows that she

was below 18 years of age whereas Section 375 Clause 6 of the IPC

provides for consent when the girl is below 16 years of age (prior to

2013 amendment), however, the learned trial court has convicted the

appellant considering the girl as minor on the basis of the evidence of

P.W. 4 (informant) and P.W.5 (victim girl). Further submission of

the learned counsel for the appellant is that the learned trial court has

not considered this aspect of the matter that the Doctor has not found

any sign of rape on the person of the victim girl and none of the

witnesses has stated as to when actually rape was committed rather

there is vague allegation that the occurrence is of between 1.1.1995

to 12.6.1996, even the victim girl has not stated any date as to when

first time the rape was committed and Halima Khatoon who also

claims herself to be eye witness and seen the intercourse has not

stated as to when she had seen the occurrence of intercourse, in such
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view of the matter there is no cogent material available on the record

to show that she was subjected to rape or any physical intercourse

was made with the girl. It has also been submitted that even it is

presumed that the girl was subjected to rape but that was not without

consent and the prosecution case is that on assurance of marriage,

intercourse was made and there is nothing available on the record to

show that she was physically committed to rape rather the evidence

available on the record shows that she was consenting party and as

such the persecution has failed to establish commission of rape as it

does not come under the purview of Section 375 of the IPC i.e.

without her consent, however, the learned trial court has not

considered the aforesaid aspect of the matter and convicted the

appellant under Section 376 of the IPC, hence, the impugned

judgment suffers from infirmities and is not sustainable in the eye of

law.

11. On the other hand the learned counsel for the State

has supported the judgment on the ground that all the witnesses have

stated about the intercourse with the victim girl and she was

subjected to intercourse on the assurance of marriage but appellant

has refused to marry with her and the evidence shows that he fled

away to Delhi and that clearly shows that from the beginning he was

not interested in marry with her and made physical relationship with
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the victim girl and fled away to Delhi and furthermore evidence

available on the record shows that at that time the victim girl was

aged about 13-14 years, in such view of the matter, she was minor

and consent or no consent is not relevant, hence, the impugned

judgment is just and proper and it does not require any interference

by this Court.

12. On perusal of the evidence of

complainant/informant, it appears that the occurrence is of between

1.1.1995 to 12.6.1996 and evidence of P.w.4 discloses that he had

engaged the appellant for tuition of his daughter. His evidence

further discloses that later on he came to know that the appellant

used to talk about “I;kj eksgCcr” and tried to seduce her . He has also

stated that the girl was aged about 13-14 years at that time and she

could not understand the meaning of “I;kj eksgCcr”. His evidence also

discloses that on that the appellants seduced her and committed

intercourse with her and it was seen by Halima Khatoon and it was

also disclosed by his daughter and his wife but first time it was

disclosed by Halima. It is also alleged that rape was committed

forcefully, on that he along with Abdul Mannan went to make

complain about the same on which the accused persons given

assurance that the appellant will marry with her and the date of Nikah

was fixed on 12.6.1996 but when he along with Abdul Mannan went
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to the house of Abdul Quadir (father of the appellant) he refused to

marriage of his son with the victim girl.

13. In his cross examination, this witnesses has stated

that the girl was aged about 13-14 years at that time but he has

mistakenly mentioned as 15 years. He has again stated that on

1.1.1995 he first time came to know about the talk of love affairs by

the appellant with his daughter and on 1.1.1995 his daughter was

subjected to rape. He was also stated that he stopped her tuition. His

evidence also shows that on 12.6.1996 the accused persons got the

appellant fled away to Delhi. Even according to the evidence of this

witness, it appears that in the complaint petition, he has given period

of occurrence between 1.1.1995 to 12.6.1996 but in his cross

examination, he has stated that he came to know about the

intercourse on 1.1.1995 and it shows that even after knowing about

the intercourse the girl was continued to have intercourse with the

appellant. His evidence also shows that at the time of occurrence in

his family, family of four brothers were living.

14. P.W.5 is the victim girl and she has also stated that

the occurrence is between 1.1.1995 and 12.6.1996. She has also

supported the prosecution story of occurrence of appellant being

engaged in tuition and the appellant used to talk about the “I;kj

eksgCcr” with her and told that he will marry her. It is also stated that
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she was subjected to intercourse 3 to 4 times. She has also stated that

the intercourse means rape. It is also stated that Haleema Khatoon

had seen when the appellant was committing intercourse with her

and Haleema Khatoon informed about the same to his father and

mother and thereafter his father, mother and Abdul Mannan went to

the house of Anwar Qadir; on which they became ready to marry

with her but later on refused to marry with her and got his son fled

away to Delhi. She has also admitted in her cross examination that

apart from his father’s family, family of three uncles were living and

whenever Anwar Hussain committed intercourse with her, male

members were away and female members were in the house with

their family and at the time of intercourse the door was closed. It is

also stated that prior to occurrence being seen by Haleema Khatoon

she was subjected to intercourse.

15. On perusal of her whole evidence it does not appear

that she was forcibly committed to rape except in para 7 she has

stated that she has been committed forcibly intercourse with her,

however, this Court failed to understand that when this witness has

admitted that the intercourse has been committed in her house and all

the family members of the victim were living as to why she had not

raised hulla about the intercourse.

16. This witness has also stated that after 1.1.1995 as to
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how many days the intercourse was committed, she does not know

and on 12.6.1996 the rape was committed with her. A suggestion has

also been given to this witness that her father as alleged in this case

lodged the present case to put pressure on appellant to marry her with

the appellant, which she has denied.

17. P.W.7 is the Doctor, who has examined her and from

her evidence, it appears that she has stated that Hymen- Old teared

on right side upper part. Vagina admits one finger easily, vaginal

swab sent for spermatozoa, report was received. No spermatozoa was

found neither alive or dead. Ono X-ray report she was found below

18 years of age. It can not be said that rape has been done or not. She

is not habitual to intercourse.

18. Apart from the above, P.W.1 has also been examined

as the prosecution witness, who is not an eye witness of the

occurrence. According to his evidence, he has supported the

prosecution case that the appellant was engaged in tuition and he has

also stated that the victim girl was aged about 14 years, however, so

far intercourse is concerned, according to him wife of Abdul Mannan

has informed about the same, on which the informant has made

complaint about the same to the parents of the appellant. This

witness has admitted in his evidence that he had got mortgaged 3

kathas of land on Rs.10,000/- on 22.6.1993 and that land was
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purchased by Abdul Quadir (father of the appellant) in the name of

his sons though he has stated that for that he has no enmity but the

aforesaid cross examination shows that he has grudge against the

family of the appellant and further he is not eye witness of the

occurrence.

19. P.W.2 Md. Hasan is also not eye witness of the

occurrence, however, he has stated that the girl is aged about 18-19

years at present and the appellant was engaged for tuition to the

victim girl and he has also disclosed that his wife Haleema Khatoon

(P.W.3) had disclosed about the rape committed by appellant and

when he enquired about the same from the appellant, he admitted the

same and their family members agreed for getting him married with

victim. She has admitted that she had seen Anwar Hussain

committing rape with the victim girl. This witness has stated that on

1.1.1995, Haleema Khatoon disclosed about the rape but P.W.5 who

is victim has not stated about any intercourse on 1.1.1995. This

witnesses has also admitted that between his father and father of the

appellant Abdul Qadir there was some cases earlier. P.W.3 Haleema

Khatoon claims herself to be eye witness of the commission of rape.

She has also supported the prosecution case in her evidence and

stated that she had seen committing rape and at that time the victim

girl was 13-14 years and she informed about the same to her husband
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and her husband enquired about the same from the appellant Anwar

Hussain which was admitted by him and their family members and

agreed for getting married with the victim and after 10 days they

went to Nikah but the accused persons had fled away the appellant to

some other place. Her cross examination further shows in para 4 that

the day when her husband Abdul Mannan (P.W.2) and P.W. 4 Md.

Taiyab went to the house of appellant on that day she disclosed about

the intercourse being committed by the appellant with Shahnaz

Khatoon (victim girl). This witness has stated that at about 1.30 on

day time she had seen Anwar Hussain committing intercourse with

Shahnaz Khatoon from her house. Her attention has been drawn

towards statement made before the police and she has stated before

the police that she had seen Anwar Hussain and Shahnaz Khatoon

having intercourse and she had also stated that Shahnaz Khatoon

was aged about 14 years. From the evidence of this witness, it

appears that though she has stated that she had seen the victim and

the appellant committing intercourse but she had not disclosed the

date on which the victim was subjected to intercourse. Further she

has stated that she had seen from house about the intercourse being

committed to her, which does not look probable.

20. P.W.6 is the formal witness and he has proved the

complaint petition and signature on the complaint petition.
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21. P.W.8 is the I.O. and his evidence shows that he had

not made any inspection of the room in which the rape is said to be

committed. He has also stated that none of the witnesses has stated

before him about the day time of the occurrence of rape and he has

also stated that the victim has stated before him that occurrence took

place after 4-5 months since January, 1995. His attention has also

been drawn towards contradiction in the evidence of the witnesses

from earlier statement before police.

22. What transpires on close scrutiny of the evidence that

though all the witnesses have stated about the victim being subjected

to intercourse by the appellant but none of the witnesses have

mentioned any date or time of commission of rape, whereas P.W.4

who is the complainant-cum-informant in this case has stated that he

came to know about the same on 1.1.1995 but the evidence of P.W.5

who is victim in this case has not given any date of intercourse,

similarly, Haleema Khatoon (eye witness of the occurrence) has not

given any specific date of the occurrence. Furthermore, as discussed

above, even though as per the evidence of P.W.4 (informant) he

came to know about the occurrence on 1.1.1995 that the girl was

subjected to intercourse till 12.6.1996 as stated in the complaint

petition. Moreover, the Doctor has not found any sign of rape and no

spermatozoa was found and she was also not found habitual of rape
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though it is alleged that in between 1.1.1995 and 12.6.1996

occurrence took place.

23. P.W.8 (I.O.) has also stated that the girl has stated

before him that 4-5 months after 1.1.1995 occurrence was taken

place.

24. All these aspects of the matter clearly create shade of

doubt about the veracity of the evidence of the prosecution

whiteness. Apart from that Section 375 of the IPC prior to 2013

amendment, provides as follows : –

375. Rape.–A man is said to commit “rape” who,
except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances
falling under any of the six following de-
scriptions:–

(First) — Against her will.

(Secondly) –Without her consent.

(Thirdly) — With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
(Fourthly) –With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully
married.

(Fifthly) — With her consent, when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to understand
the nature and consequences of that to which she
gives consent.

(Sixthly) — With or without her consent, when she
is under sixteen years of age.

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25. Later on 16 years of age has been substituted by 18

years of age vide, 2013 Criminal Law Amendment Act so age of the

victim girl is much relevant in the present case. Evidence of P.W.5

shows that she was aged about 15 years, however, in the court the

complainant had stated that she was aged about 13 years and P.W.4

(father of the victim ) has also stated that she was 13 to 14 years and

by mistake he has mentioned 15 years in the complaint petition.

Evidence of another witnesses has also disclosed that she was aged

13-14 years. The doctor who has examined the girl has found that the

age of the girl to be 18 years. The victim girl in para 6 has also stated

that she studied up to class 5 but no certificate has been brought by

the prosecution on the record in support of her age.

26. It is well settled principle that the prosecution has to

establish each ingredient of rape including the age of the girl, by

cogent and reliable evidence, however, in the present case, the

prosecution has not been able to establish the age of the girl.

27. So far question of consent is concerned Section 90 of

the IPC defines consent as follows : –

“90. Consent known to be given under fear or
misconception.- A consent is not such a consent
as it intended by any section of this Code, if the
consent is given by a person under fear of injury,
or under a misconception of fact, and if the
person doing the act knows, or has reason to
believe, that the consent was given in
consequence of such fear or misconception.”

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28. In the present facts and circumstances, the aforesaid

question of consent or non-consent has been discussed in the case of

Jayanti Rani . V. Stat of West Bengal reported in 1984 Criminal

Law Journal 1535 and considering the ratio of the same in case of

Uday. Vrs. State of Karnatka reported in AIR 2003 SC 1639, the

Hon’ble Apex Court in para 21 of the judgment held as follows :

“It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent
given by the prosecutrix to sexual intercourse with
a person with whom she is deeply in love on a
promise that he would marry her on a later date,
cannot be said to be given under a misconception of
fact. A false promise is not a fact within the
meaning of the Code. We are inclined to agree with
this view, but we must add that there is no strait
jacket formula for determining whether consent
given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the
tests laid down by the Courts provide at best
guidance to the judicial mind while considering a
question of consent, but the Court must, in each
case, consider the evidence before it and the
surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar
facts which may have a bearing on the question
whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh
the evidence keeping in view the fact that the
burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent
being one of them.”

29. As such it is settled by above pronouncement that so far

consent and non-consent is concerned it varies according to the facts
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and circumstances of each case.

30. The aforesaid question was reconsidered in a case

of Deelip Singh V. State of Bihar reported in (2005) 1 SCC 88 and

it was held in para 35 of the judgment, as follows : –

“35. The remaining question is whether on the
basis of the evidence on record, is it reasonably
possible to hold that the accused with the
fraudulent intention of inducing her to sexual
intercourse, made a false promise to marry? We
have no doubt that the accused did hold out the
promise to marry her and that was the predominant
reason for the victim girl to agree to the sexual
intimacy with him. PW 12 was also too keen to
marry him as she said so specifically. But we find
no evidence which gives rise to an inference beyond
reasonable doubt that the accused had no intention
to marry her at all from the inception and that the
promise he made was false to his knowledge. No
circumstances emerging from the prosecution
evidence establish this fact. On the other hand, the
statement of PW 12 that ‘later on’, the accused
became ready to marry her but his father and
others took him away from the village would
indicate that the accused might have been prompted
by a genuine intention to marry which did not
materialize on account of the pressure exerted by
his family elders. It seems to be a case of breach of
promise to marry rather than a case of false
promise to marry. On this aspect also, the
observations of this Court in Uday’s case at
paragraph 24 comes to the aid of the appellant.”

31. In the present case also, the evidence available on the

record shows that the appellant was intended to marry with victim

girl and the evidence also shows that Nikah was also finalized but the

family members of the appellant got the appellant fled away to Delhi
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and as such facts of the present case are squarely covered by the

facts of the case of Deelip Singh V. State of Bihar (Supra). These

aspects have not been taken into consideration by the learned trial

court while convicting the appellant under Section 376 of the IPC

though the learned trial court has acquitted the appellant and other

accused persons from the charges under Section 406 of the IPC.

32. Considering the infirmities and inconsistencies as

discussed above, in my opinion, the appellant is entitled for benefit

of doubt in the facts and circumstances of the case.

33. Accordingly, this appeal is allowed and the

impugned judgment and order is set aside. The appellant is in jail, he

is discharged from the liability of his bail bonds.

(Vinod Kumar Sinha, J)

chn/-

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 09.03.2018
Transmission 09.03.2018
Date