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Akhlaque Hussain vs The State Of Bihar on 14 March, 2018

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 6

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 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 13

of 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

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