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Md. Nawaz Alam @ Md.Nawaz @ Nawaz … vs The State Of Bihar on 26 June, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.361 of 2015
Arising Out of PS.Case No. -19 Year- 2005 Thana -AWADPUR District- KATIHAR

Md. Nawaz Alam @ Md.Nawaz @ Nawaz Alam, Son of Late Shahabuddin,
Resident of Village – Sirajmani, P.S. – Abadpur, District – Katihar.

…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance:

For the Appellant/s : Md. Helal Ahmad, Adv.
For the State : Mr. S.A. Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 26-06-2018

Appellant, Md. Nawaz Alam @ Md.Nawaz @ Nawaz

Alam has been found guilty for an offence punishable under

Section 376 of the IPC and sentenced to undergo R.I for 7 years as

well as to pay fine appertaining to Rs.20,000/- in default thereof,

to undergo S.I for 6 months, additionally, with a further direction

that the period having undergone during course of trial be set off as

provided under Section 428 of the Cr.P.C. vide judgment of

conviction dated 29.04.2015 and order of sentence dated

04.05.2015 passed by Second Additional Sessions Judge, Katihar

in Sessions Trial No.232 of 2006.

2. Victim (name withheld) PW.14 filed written report on

01.04.2005 disclosing therein that on 20.06.2004 at about 07:00

PM while she had gone north to her house to meet nature’s call,

her co-villager Md. Nawaz Alam came, grabbed her. She was about

to raise alarm but, was pre vented by way of gagging her mouth and

then she was raped. Md. Nawaz Alam also threatened that in case
Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 2

of disclosure, she will have to face dire consequence. He had

further offered to marry. However, she disclosed the event to her

parents whereupon, her parents talked with Md. Nawaz Alam and

during course thereof, he assured that he will marry with her but,

first of all he will have to take his parents in his confidence and for

that, he is going to take proper step. Under the pretext of promise

to marry he continued himself in gleaning physical intimacy with

her. In order to project himself conscious in getting the marriage

solemnized, he took her to Barsoi where there was pair

photography. After returning therefrom, he again began to delay

the matter whereupon, villagers were informed and then, there was

panchayati on 19.12.2004 participated by local mukhiya, members

of the panchayat samiti and others wherein Md. Nawaz Alam along

with her parents, brother, sister were present and during course

thereof, they became ready for marriage. Subsequently thereof,

their family members got Md. Nawaz Alam disappeared and then,

advanced rupees fifty thousand as dowry and said that without

payment of aforesaid 50,000/-, marriage would not be solemnized.

As, her parents failed to fulfill the demand of dowry, they declined

as a result of which complaint petition no.19/2005 was filed. Later

on Md. Nawaz Alam got himself married at some other place, hence

the case is being filed.

3. After registration of Abadpur P.S. Case No.19/2005

investigation was taken up and after concluding the same charge

sheet was submitted facilitating the trial which concluded

recording acquittal relating to other co-accused while appellant

being convicted and sentenced in a manner as indicated
Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 3

hereinabove, 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 innocence. Furthermore, it has also been

pleaded that whole family has been implicated on account of land

dispute. One DW along with documentary evidence has also been

adduced in support thereof.

5. In order to substantiate its case, prosecution had

examined altogether fourteen PWs who are PW.1-Dr. Laxmi Sen,

PW.2-Iltaf Hussain, PW.3-Md. Rafikul, PW.4-Abdul Samad, PW.5-

Murtaza, PW.6-Bari, PW.7-Muzibur Rahman, PW.8-Safikul, PW.9-

Anizh, PW.10-Md. Walid, PW.11-Asimuddin, PW.12-Lili Khatoon,

PW.13-Kalo Khatoon, PW.14-victim. Prosecution had also exhibited

injury report, as Ext.1. Defence had also examined one DW, DW.1-

Kanak Lal, formal in nature and had also exhibited, Ext.A-Certified

copy of evidence of PW.6 examined while proceeding under J.J. Act,

Ext.B-Deposition of PW.7 and Ext.C-Certified copy of Complaint

petition No.19/2005.

6. Now coming to the ocular evidence, it is evident from

the lower court record that prosecution had adduced three kinds of

evidence, the first one that of Dr. Laxmi Sen PW.1, who had

examined the victim on 02.04.2005 and during course thereof, had

not found external or internal injury. Hymen was found ruptured,

admitting two fingers and so, opined to be accustomed to the

sexual intercourse. On the basis of the radiological finding she

shown age of the victim in between 18-19 years.

Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 4

7. The remaining witnesses are found to be classified

under the independent witnesses out of whom PW.4 was tendered

while PW.2, PW.3, PW.6, PW.8 were declared hostile. PW.5 is the

hearsay witness and likewise status happens to be relating to

PW.7. PW.9 and PW.10 who had claimed that they have seen the

victim weeping and on query, she disclosed that she was raped by

the appellant on the alleged date at evening hours.

8. Now the remaining witnesses are PW.11, father of the

victim, PW.12 sister of the victim PW.13 mother of the victim and

PW.14 the victim herself. Admittedly, PW.11, 12, 13 are not the eye

witness of occurrence but, when their testimony are taken

together, it is apparent that they have twisted the prosecution

version though, admitted that victim as well as Md. Nasim Alam

were in love and what they have acted, on account of continuance

of aforesaid event. PW.12 even had disclosed during examination-

in-chief itself that she along with victim was taken away by the

appellant to the place of his Bahnoi where they remained for three

days during midst thereof, pair photography with the victim was

snapped as well as steps for marriage was also taken up though,

could not materialized.

9. PW.11 also admitted that his daughter had loved Md.

Nawaz (Para-7) when PW.13, mother was cross-examined at para-3

she had stated that both were in love but again controverted that

not. She had further stated at para-4 that at the time of

occurrence, victim was not of marriageable age. For the present,

she happens to be aged about 24 years.

Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 5

10. PW.14 is the victim who during her examination-in-

chief had stated that on the alleged date and time of occurrence

while she was going to meet nature’s call, she was raped by the

accused Md. Nawaz Alam but, the subsequent activity whereunder

on the pretext of marriage both the parties continued with their

physical relationship as disclosed under written report have been

completely bypassed. In para-4 of her cross-examination she had

stated that accused was also willing to marry as well as she was

also willing to marry. Howe ver, at para-5 she had stated that both

were not in love. At para-17 she had stated that at the time of

occurrence darkness had fallen down whereupon identification by

face was not plausible but, as the accused had raped her, on

account thereof, she had identified him.

11. Investigating Officer has not been examined. Because

of the fact that there happens to be no contradiction visible in the

evidence of the PWs on account thereof, it could not be said that on

account of non-examination of the Investigating Officer serious

prejudice has been caused moreover, in the background of

blatantly denial of the occurrence.

12. At an initial stage, delay in launching prosecution

was duly explained on account of continuity of the relationship

under the garb of promise of marriage which could not materialized

in the background of non-fulfillment of demand of dowry to a tune

of Rs.50,000/- but, keeping out of screen the intermediary event

has exposed the weakness of the prosecution case over inordinate

delay in launching the prosecution which is found not at all
Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 6

explained. In likewise manner, according to the evidence of PW.11,

PW.12 the victim was aged about 23 years at the time of alleged

occurrence while PW.13 had controverted the same by way of

stating that she was not of marriageable age at the time of alleged

occurrence, is found completely watered down by the victim herself

who had not disclosed /claimed herself to be a minor at the time of

the occurrence. Moreover, prosecution had not challenged

radiological finding whereupon PW.1 had estimated age of the

victim in between 18-19 years and so, her age could be in between

20-21 years, on account of permissible variance of age ± two years

and further, the age leaning in favour of the appellant is to be

accepted.

13. Had there been disclosure at the end of the victim

PW.14, which she concealed during course of her evidence

regarding continuance of physical relationship under the garb of

promise would have given a different sphere. But, cutting of the

same makes the situation ridiculous while appreciating the

evidence of the victim who disclosed that just after rape he had

offered to marry with her. When the allegation of rape is taken

together with her cross-examination (Para-4 5), the factum of

rape became suspicious rather, it speaks otherwise, and, being

major, the victim was quite competent to nod.

14. By catena of judicial pronouncement it has been

settled at rest that the evidence of prosecutrix would be sufficient

to record finding of guilt in case, is found reliable. In the present

context, it is apparent that the evidence of victim in the facts and
Patna High Court CR. APP (SJ) No.361 of 2015 dt.20-06-2018 7

circumstances indicated hereinabove, is found unreliable as, the

activities whatever been alleged appears to be consensual one

which, the victim being major was very much capable and that

being so, the finding recorded by the learned lower court is not at

all found justifiable. Consequent thereupon, same is set aside.

Appeal is allowed. Appellant is on bail, hence is discharged from its

liability.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 10.05.2018
Uploading Date 26.06.2018
Transmission 26.06.2018
Date

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