IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.303 of 2015
Arising Out of PS.Case No. -60 Year- 2006 Thana -KOCHADHAM AN District- KISANGANJ
Akhlaque Hussain son of Late Haji Md. Ibrahim resident of village and Police
Station- Kochadhaman, District- Kishanganj.
…. …. Appellant/s
Versus
The State of Bihar …. …. Respondent/s
Appearance:
For the Appellant/s : Mr. Najmul Hoda, Adv.
For the Respondent/s : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 14-03-2018
Appellant, Akhlaque Hussain has been found guilty for
an offence punishable under Section 376 of the IPC and sentenced to
undergo R.I. for seven years as well as to pay fine appertaining to
Rs.5000/- and in default thereof, to undergo R.I. for six months,
additionally. In addition thereof, appellant has been directed to pay
Rs.50,000/- by way of compensation.
2. Bibi Badrun Nisha filed Complaint Petition
No.301/2006 before the Chief Judicial Magistrate, Kishanganj on
07-04-2006 alleging inter alia that on 25.12.2005 her daughter Jaha
Ara who happens to be a divorcee and on account thereof, was
staying at her place for the last so many years, had gone to meet
natures call. Perceiving some delay she along with her younger
daughter Rajeka Begum gone in search of her and during course
thereof she had seen Akhlaque having over Jahan Ara and was
raping while she was tossing. After seeing her, Akhlaque ran away.
Then thereafter, they saw cloth was thrust in the mouth of the victim
which was taken out and then, thereafter, they made alarm
attracting the villagers whom she (Jahan Ara) disclosed regarding
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 2
commission of rape by Akhlaque Hussain by putting her under
threat of murder after showing chura. It has further been disclosed
that matter was taken up at the local le vel whereupon a panchayati
was convened having presence of Akhlaque Hussain and his family
members who confessed his guilt and further, undertook to marry.
In the aforesaid background, Akhlaque Hussain began to visit her
place and during course thereof, developed physical relationship
with Jahan Ara as a result of which she became pregnant. Akhlaque
Hussain by way of administering the medicine made unsuccessful
attempt to a bort and further, declined to marry whereupon, lastly
instant case has been filed as police refused to acknowledge.
3. Aforesaid complaint petition was sent to the local
Police Station for registration as well as investigation whereupon
Kochadhaman P.S. Case No.60/2006 followed with investigation as
well as submission of charge sheet facilitating the trial, meeting with
ultimate result, subject matter of instant appeal.
4. Defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the
Cr.P.C. is that of complete denial. Furthermore, it has also been
pleaded that as, the prosecution party were eager to marry the victim
with the appellant which he refused on account thereof, this false
case has been registered levelling frivolous allegations. To
substantiate the same, one DW has also been examined.
5. In order to substantiate its case prosecution had
examined eleven PWs who are PW.1-Matiur Rahman, PW.2-Jakir
Alam, PW.3 Habibur Rahman, PW.4-Md. Istiyaque, PW.5-
Jamaluddin, PW.6-Rajna Begum, PW.7-Badrun Nishan, PW.8-Jaha
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 3
Ara Begum, PW.9-Safiur Rahman, PW.10-Nirmal Kumar and PW.11-
Dr. Urmila Kumari. Side by side had also exhibited endorsement
over complaint Ext.1, Formal FIR Ext.1/1, Medical Report Ext.2. On
the other hand, defence had also examined DW.1-Parmeshwar
Mandal having no exhibit of the documentary evidence.
6. Learned counsel for the appellant vehemently
challenged the finding having been recorded by the learned lower
court on the pretext that after going through the evidence, it is
apparent that victim was major and was a consenting party which,
the subsequent conduct of the victim clearly suggest and that being
so, no offence under Section 376 of the IPC is made out. Further,
elaborating the issue, it has been submitted that from going through
the written report, it is apparent that no P.O. has been disclosed. In
the aforesaid background, it has also been submitted that during
course of evidence of witnesses at least PW.6 and PW.7, it was
expected at their end to have affixed the place of occurrence properly
which, the victim PW.8 had identified to be the banana field and in
the aforesaid background when the evidence of the Investigating
Officer, PW.10, is gone through, it is evident that there happens to
be inconsistency on that very score. This inconsistency will play
pivotal role during course of appreciation of the evidence as, the
conduct of the victim clearly explicit to be a consenting period,
indulged in physical relationship and continued the same for years
together without any protest or hitch and that being so, the finding
recorded by the learned lower court found contrary to the materials
available on the record.
7. Furthermore, it has also been submitted that when the
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 4
evidences are seen, it is apparent that the independent witnesses,
PW.1, PW.2, PW.3, PW.4 and PW.9 have not supported the case of
the prosecution, whoever happens to be, PW.5 father, PW.6 sister,
PW.7 mother and PW.8 the victim herself whose evidence in the facts
and circumstance of the case would not have been relied upon.
Furthermore, the evidence of PW.10 the Investigating Officer is not at
all found akin to prosecution. The evidence of doctor PW.11 is
nothing but suggest the ultimate result of indulgence of victim under
sexual activity without any precaution as a result of which she
became pregnant. Accordingly, the evidence in its entirety did not
suggest that victim was e ver raped. The present aspect is also to be
seen in the background of long delay in launching of criminal
prosecution and only to wrap the same, complaint petition has been
filed in court with false assertion that police had refused to register
the case. Then, it has been submitted that subsequent conduct, as
disclosed by the prosecution witnesses themselves ruled out incident
of rape, in the background of continuing relationship amongst the
party (prosecutrix with appellant) and that being so, the judgment of
conviction and sentence recorded by the learned lowe r court is fit to
be set aside.
8. On the other hand, the learned Additional Public
Prosecutor while supporting the finding recorded by the learned
lower court has submitted that being an incident of rape that too,
while the victim had gone to meet natures call from her house, could
not, be seen by the villagers as till then darkness had fallen and that
happens to be reason behind that there happens to be disclosure at
the end of the prosecution that while PW.6 along with PW.7 have
gone in search of victim that they were carrying torch and in torch
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 5
light they have seen the accused/appellant indulged in committing
rape over the victim, PW.8 and so, PW.6, PW.7 and PW.8 are the
witness over the occurrence who substantiated the same is found
duly corroborated with the evidence of PW.10 Investigating Officer as
well as PW.11, the doctor. Consequent thereupon, the finding
recorded by the learned lower court did not attract any kind of
interference.
9. So far evidence of prosecutrix is concerned, it has been
settled at rest that unless and until there happens to be grave
infirmity, improbability or exaggeration, it should not be brushed
aside on flimsy grounds or should be asked for corroboration. Rape,
so far Indian social structure is concerned has been treated not only
an offence against an individual rather it happens to be against the
society as is attached with the prestige of a women, has been treated
as paramount consideration. The scar of rape is not extended only to
body rather it happens to be extended to soul which the victim has
to carry till her life and in the aforesaid background. The delay in
institution of prosecution as well as reliability of evidence of
prosecutrix has properly been considered by the Apex Court in State
of U.P. vs. Sanjay Kumar reported in 2017 Cr.L.J. 1443:
“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
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 6not 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 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. xxx
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 7
28. xxx
29. xxx
30. xxx
31. 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 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.
10. In the aforesaid background, first of all evidence of
PW.8, victim is to be seen. PW.8 during course of examination-in-
chief had stated that the occurrence happens to be about one year
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 8
and ten months ago. It was night then corrected 06:00 PM. She had
gone to meet natures call towards eastern-southern direction from
her house where banana cluster lies. At that very moment, Akhlaque
Hussain came, caught hold her, gagged her mouth and committed
rape upon her. Identified the accused. As a result of rape, she
became pregnant. He continued the same for subsequent four
months then thereafter, she was forcibly administered medicine in
order to abort which she vomited. Later on, she gave birth to a child
who was in her lap and recorded by the learned lower court. During
cross-examination she had stated that she made statement before
the police (Investigating Officer as well as Superintendent of Police).
She had further stated that earlier she was married to Sakil about
20-22 years ago and then thereafter, he divorced her. At para-4, she
had further stated that she was knowing Akhlaque Hussain since
before the occurrence. In para-5 she had further stated that she had
five brothers Sakil, Jasim, Khalid, Wahir, Ekbal. They are not
witness of this case. Panchayati was convened on that very score. In
case the accused would have married her then in that circumstance
instant case would not have been registered. Then had said at the
present moment, she is not remembering what she had talked with
her mother. Then had disclosed that no talk was there. In para-6,
she had shown the boundary of the field having banana cluster.
North-Nepal, South-Kuresa, East-West Bengal, West-Uttarpradesh.
That field belongs to her. In para-9 she had stated that she is unable
to disclose actual age of the accused. He had wife, children. At the
time of marriage of the accused she had not taken birth. Then had
explained the event of rape according to her own perception. In para-
10 she had disclosed that accused had got 30-35 bighas of land. In
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 9
para-11 she had denied the suggestion that as accused declined to
marry on account thereof, this false case has been filed.
11. PW.11 is the doctor who had examined the victim on
10-08-2006 and found the following:-
P/A- Uterus 26-28 week size. Pelvic exam-
carvic sat ultrasonography – Shows
pregnancy of 29 weeks 3 days ± 7 days.
She is carrying pregnancy of 29 week.
Accordingly to doctor she was carrying pregnancy of 29
weeks. From cross-examination, it is e vident that she was not at all
cross-examined on the score of her finding.
12. PW.10 is the Investigating Officer who had deposed
that after receiving copy of the complaint from the court, he had
registered the case (exhibited the same). Proceeded with the
investigation. Took further statement of informant Badrun Nisha,
inspected the place of occurrence which happens to be south to the
house of the informant. Disclosed the boundary P.O. as East-Barren
land of Mahboob, West-House of informant, North-Road, South-Jute
field of the informant. Examined the victim as well as other
witnesses, sent the victim to hospital for medical examination,
procured the medical report and then thereafter, as he was
transferred handed over charge to the Officer-in-charge. During
cross-examination he had stated that he had not taken statement of
the person whose land lies in the boundary of the P.O. Then had
denied the suggestion that his investigation happens to be cryptic
one.
13. PW.7 is the informant/mother of the victim. She had
stated that her daughter had gone to meet natures call east to her
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 10
house on the alleged date and time of occurrence. Perceiving some
delay, she along with her another daughter Rajida Begum gone in
search of her and during course thereof, had seen appellant
Akhlaque Hussain committing rape over the victim he had thrust
cloth inside the mouth of victim. He had committed rape on the
pretext of chura. Seeing them, accused escaped therefrom. There
was hue and cry whereupon, panchayati was convened wherein,
accused confessed his guilt and offered to marry but, could not
marry. He tried to administer medicine to the victim to facilitate
abortion but, the victim averted. Now the child has begotten.
Identified the accused. During cross-examination at para-4 she had
stated that her daughter was married with Sakil about 25, 26 years
ago but was divorced. She had further stated that she had not gave
evidence before institution of the case. Her husband, son
accompanied her to court. She happens to be Pardanashin lady. Her
sons, husband have accompanied them. Then, she was confronted
with the word “Balatkar” which she explained as per her own
understanding. In para-5 she had stated that she had not talked
with her daughter. Her daughter had not begotten a child who died
subsequently. In para-6 she had disclosed the age of the appellant to
be 70 years. She had further disclosed that had accused married
with the victim, no case would have been instituted. At para-7, she
had disclosed about the family status of the accused/appellant then
had denied the suggestion that victim was never raped by the
accused. She had further denied the suggestion that she wanted the
accused to marry with her daughter which he refused and on
account thereof, this false case has been instituted.
14. PW.6 is the younger sister of the victim, who during
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 11
course of examination-in-chief had supported the version of her
mother, begotting of a child by the victim on account of rape having
committed by the accused and then, identification of the accused.
During cross-examination she had stated that this case has been
instituted by her mother. She had further stated that at an earlier
occasion she had gone to police station and had made her statement.
She further stated that she had seen Akhlaque Hussain in naked
condition. She had further stated that victim Jaha ara was married
with Sakil, but Sakil had divorced her. After 12 years of the event of
divorce this occurrence had taken place whereupon, case has been
instituted. Then had stated showing the family status of the accused.
Then had denied the suggestion that as accused failed to accede with
their demand to marry with the victim, on account thereof, instant
case has been registered.
15. PW.5 is the father of the victim who, on the factum of
rape happens to be hearsay witness and the source having been
disclosed at his end happens to be the victim as well as his wife.
Then had deposed over the panchayati and continued physical
intimacy under the garb of an undertaking having at the end of the
appellant in the panchayat that he is going to marry with the victim.
During cross-examination, he was cross-examined on the score of
marriage, divorce of the victim. He had further disclosed with regard
to begetting of a child by the victim who is 9-10 months old. There
also happens to be disclosure on the score of panchayati. He had
further been tested on the score of filing of the case having at the
instance of his wife. Victim had not disclosed that she had instituted
a case. He had further stated that he had not taken intended for
getting his daughter married with the accused. He had further stated
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 12
that he had got no document of divorce. Then had denied the
suggestion that he along with his family members have hatched a
conspiracy to get the victim married with the accused and for that,
this case has been instituted.
16. Now coming to the evidence of rest of the witnesses,
PW.1, PW.3, PW.4 and PW.9 have not supported the case of the
prosecution. However, PW.2, though was declared hostile but had
divulged that he heard about inter se relationship of the victim with
Akhlaque Hussain and on account thereof, she became pregnant.
17. After meticulous examination of the evidence of the
witnesses it is apparent that victim along with her mother and sister
were not at all cross-examined at the end of the appellant either on
the score of rape or panchayati, an undertaking having at the end of
appellant to marry and under garb of aforesaid undertaking availed
physical relationship with the victim furthermore and that being so,
the same remained intact. It is further evident that victim was not
cross-examined over the place of occurrence. That means to say
whatever been asserted at their end, PW.6 and PW.7 to be an eye
witness of commission of rape by the Akhlaque Hussain and further
having been duly elaborated by the victim, PW.8 is found unshaken.
18. 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:
“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 sta tement
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 13of a witness, the said witness must be given an
opportunity to explain his sta tement 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)
19. Had there been any sort of cross-examination at the
end of the appellant over the occurrence and in likewise manner had
there been at least a suggestion at the end of the appellant that
being major it was a consensual activity of the victim or had there
been suggestion at the end of the appellant that victim being major
voluntarily indulged in physical relationship with the appellant then,
in that circumstance, the matter would have been viewed with
different prospect but, considering the suggestion apart from having
lapses at the end of the appellant in properly cross-examining the
victim over the factum of rape, denying any sort of intimacy with the
victim rather suggesting that in order to coerce the appellant to
marry with the victim this false case has been instituted, exposes
complete illusion of the appellants.
Patna High Court CR. APP (SJ) No.303 of 2015 dt.14-03-2018 14
20. At the present moment, certain defects persisting on
the record needs to be taken note of. Although offence of rape has
been alleged on 25.02.2005, but in the format of charge it has been
shown as 12.12.2015, and in likewise manner, in the statement
recorded under Section 313 Cr.P.C. So far defect in charge is
concerned, it is found to be of no consequence as under Section 212
Cr.P.C., and in likewise manner, during course of statement, as
appellant had faced trial and so, was well acquainted with the
allegation. Moreover, the Apex Court in Yogesh Singh vs. Mahabeer
Singh Ors. reported in (2017) 11 SCC 195 has properly
explained the same.
21. As such, instant appeal sans merit and is accordingly
dismissed. Appellant is on bail, his bail bond is cancelled directing
him to surrender before the learned lower court within fortnight to
serve out remaining part of sentence, failing which the learned lower
court will be at liberty to proceed against the appellant in
accordance with law.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 16.03.2018
Transmission 16.03.2018
Date
