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Nirmal Marandi vs The State Of Bihar on 9 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.390 of 2015
Arising Out of PS.Case No. -37 Year- 1997 Thana -FALKA District- KATIHAR

1. Nirmal Marandi S/o Late Rasik Marandi Resident of Village Chapraila, Police
Station Falka, District Katihar.

…. …. Appellant/s
Versus

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

Appearance :

For the Appellant/s : Mr. Gyanand Roy, Adv.
Mr. Vivekanand Jha, Adv.
For the Respondent/s : Mr. Sujeet Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 09-03-2018

Vide judgment of conviction dated 29.05.2015, sole

appellant, Nirmal Marandi has been found guilty for an offence

punishable under Section 376 IPC, and vide order of sentence dated

01.06.2015, sentenced to undergo RI for 7 years as well as to pay fine

appertaining to Rs. 10,000/- and in default thereof, to undergo SI for 6

months passed by Additional District Sessions Judge-II, Katihar in

Sessions Trial No. 139/2001. It has also been directed that the amount

of fine if deposited be paid to the victim.

2. On 29.03.97, victim- PW-1, (name withheld) filed

a complaint petition disclosing therein that she happens to be aged

about 13 years, unmarried and accordingly, is staying at the place of

her parents. On the alleged date i.e. 21.03.1997 at about 2.00 PM

while she was asleep, all of a sudden, accused intruded inside her
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 2

house, put his hand over her breast whereupon, she woke up. Seeing

the accused, she tried to raise alarm whereupon, her mouth was

gagged and then after lifting her Sari and Saya accused pounced upon

her and committed rape. During course thereof, anyhow his hand

slipped whereupon she raised alarm attracting Chandu Murmu.

During midst thereof, her mother also arrived and they have seen the

accused indulged in raping her. The accused had torn her blouse as

well as also scratched over her face. On hue and cry raised by her

mother as well as Chandu Murmu, so many villagers assembled

seeing whom, the accused, ran away. Then thereafter, the parents,

brother had gone to the place of accused whereupon, his family

members became adamant to assault them. In the aforesaid

background, there was caste-panchayat whereunder accused and his

family members were called upon and inquired. Accused had

confessed his guilt and then undertook to marry and for that, as per

prevailing custom, she was directed by the Panchayat to join

whereupon, she was taken away by the accused at his place where she

lived as spouse. After 4 days, she was kicked out. Accused refused to

marry with her, whereupon, the police was approached but as the

police declined to register a case then, complaint petition has been

filed.

3. Learned Magistrate directed the concerned police
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 3

station to register a case and investigate as provided under Section

156(3) of the CrPC whereupon, Falka PS Case No. 37/97 was

registered, followed with an investigation, submission of charge-

sheet, facilitating the trial, meeting with ultimate result, subject matter

of instant appeal.

4. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313

CrPC is that of complete denial of the occurrence. Subsequently

thereof, the accused had taken conflicting defence that victim was in

love since long having physical relationship but, as accused had

refused to marry, on account thereof, this case has falsely been

instituted. Though PWs-2 and 3, parents were suggested otherwise.

However, neither ocular nor documentary evidence has been adduced

on behalf of defence.

5. In order to substantiate its case, prosecution had

examined altogether 12 PWs, those are, PW-1, Victim herself, PW-2,

Pradhan Murmu, father, PW-3, Majhli Kisku, mother, PW-4, Turu

Murmu, PW-5, Narsingh Murmu, PW-6, Chhotelal Soren, PW-7,

Mangal Murmu, PW-8, Bhaiya Lal Hansda, PW-9, Badka Kisku, PW-

10, Shekhar Singh, PW-11, Md. Akil and PW-12, Dr. Mini Rani. Side

by side had also exhibited Ext-1, Formal FIR, Ext-2, endorsement

over written report and Ext-3, medical report. As stated above, neither
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 4

ocular nor documentary evidence has been adduced on behalf of

defence.

6. Manifold arguments have been made on behalf of

learned counsel for the appellant while challenging the finding

recorded by the learned lower court. The first and foremost argument

happens to be that there happens to be inordinate delay in launching

the instant prosecution without any legal, acceptable explanation and

that being so, the prosecution story is fit to be disbelieved. Then it has

been submitted that from the conduct of the prosecutrix, it is evident

that she happens to be major as well as a consenting party. That being

so, no offence of rape is found on the allegation whatsoever been

attributed at her end rather, it suggests that on account of some sort of

differences, the continuing intimate relationship got broken

whereupon, this case has been filed with an ulterior motive. Because

of the fact that there happens to be no allegation at the end of the

prosecution that consent was obtained under threat, coercion or under

deceitful means, on account thereof, the consent which is found

exposed by her conduct is to be accepted whereupon, the finding

recorded by the learned lower court is fit to be erased.

7. Then it has been submitted that the version of the

prosecutrix could not be accepted as a gospel truth. Furthermore,

relying upon the Deelip Singh @ Dilip Kumar v. State of Bihar
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 5

reported in (2005) 1 SCC 88 as well as Abbas Ahmad Choudhary v.

State of Assam (2010) 12 SCC 115, it has been submitted that the

circumstances visualizing from the evidence of prosecutrix appears to

be sufficient to throw her assertion and that being so, considering the

evidences of PWs-2 and 3 being parents, the independent witnesses,

PWs 4 to 9 who have not supported the case of the prosecution and so

the cumulative effect did not justify the finding recorded by the

learned lower court.

8. Apart from this, it has also been submitted that

PW-12, doctor had examined the victim. Although she had found

hymen old ruptured having subject to sexual activity at an earlier

occasion but had not found any kind of external injury over any part

of body including genitalia and that being so, question of rape or

forceful intercourse does not arise. It has also been submitted that

from the medical evidence, it is apparent that age of victim has been

ascertained in between 16-17 years and so she was major, at least at

the verge of majority and so, taking into account her conduct, it could

be said that her indulgence happens to be in continuance and so, the

appellant would not be found guilty for the commission of rape. As

such, appeal is fit to be allowed.

9. On the other hand, learned APP, opposing the

submissions made on behalf of appellant, submitted that so far Indian
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 6

Continent is concerned, verginity of a girl is of paramount

consideration. That being so, unless and until, there happens to be

some sort of activity at the end of accused against the victim, victim

would not dare to come to court to say that she has been ravished and

that happens to be reason behind that consistently, it has been held

that delay in institution of a case so far rape is concerned, would not

prove fatal. In likewise manner, it has also been settled at rest that

unless and until there happens to be some sort of positive evidence

with regard to unscrupulous activity of the victim, ordinarily the

evidence of the victim is to be accepted. In the aforesaid background

when the evidence of the victim is taken along with other evidences, it

is apparent that she was ravished at the end of the appellant

whereupon, the finding having been recorded by the learned lower

court did not attract interference and is, accordingly, fit to be

confirmed.

10. Before coming to the merit of the case, from the

record it is evident that occurrence happens to be in two stages. The

first one happens to be commission of rape on 21.03.1997 and then

thereafter, the subsequent event whereunder Panchyat was convened

and as per prevailing customs amongst Santhal, after confession at the

end of appellant and further having an undertaking at his end to

marry, he took the victim at his place where she was kept for four
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 7

days duly recognized as wife and then thereafter, kicked out. When

the aforesaid theme has been properly scrutinized, it is evident that

allegation has been levelled only with regard to rape having been

committed on 21.03.1997 and the same happens to be the factum of

charge as well as statement recorded under Section 313 CrPC. That

means to say, the subsequent activity whatsoever been asked to be

after effect did not connect with the episode which took place on

21.03.1997 whereunder victim was raped. So, the matter for

adjudication is whether on 21.03.1997, victim was raped or not.

11. Before coming to evidence of prosecutrix and

her parents who stood as PWs-1, 2 and 3, the evidences of other

witnesses have to be seen. Learned counsel for the appellant is right in

arguing that PWs-4 to 9 were not found loyal to the prosecution and

so, were declared hostile but, when their evidences have minutely

been gone through, PW-4, during cross-examination at para-5 had

stated that at the time of occurrence he was at Dumka. PW-5 had

deposed that the person who had committed rape over prosecutrix, he

does not identify him. In para-6 of his cross-examination, he had

stated that at the time of occurrence he was at Punjab. PW-6 at para-6,

had stated that he does not know with regard to occurrence while PW-

7 at para-6 had stated that he had not heard from anybody with regard

to occurrence. At the time of occurrence, he was at Haryana. PW-8, at
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 8

para-5 had said that he had not heard from anybody with regard to

occurrence. PW-8 at para-5 had stated that he had not heard any kind

of occurrence. From the evidence of hostile witnesses as referred

hereinabove, it is crystal clear that they have not stated that no such

type of occurrence had ever taken place rather they have given some

sort of explanation that at the time of occurrence they were not present

in the village, one had spoken that he was at Dumka, other had said

that he was at Haryana and some had spoken that he had not heard. So

far PW-6 is concerned, though had claimed to at Punjab, during

course of occurrence but in his examination-in-chief alone he had

stated that rape was committed over the victim.

12. The evidence of hostile witness supporting the

prosecution case is to be accepted. Times without number, it has been

held by the Hon’ble Apex Court that mere declaring a witness hostile

will not be subject his/her evidence to be out rightly rejected.

13. In State through PS Lodhi Colony v. Sanjeev

Nanda reported in (2012)8 SCC 450 It has been held as follows:-

99. Witness turning hostile is a major
disturbing factor faced by the criminal courts in India.
Reasons are many for the witnesses turning hostile, but
of late, we see, especially in high profile cases, there is
a regularity in the witnesses turning hostile, either due
to monetary consideration or by other tempting offers
which undermine the entire criminal justice system and
people carry the impression that the mighty and
powerful can always get away from the clutches of law
thereby, eroding people’s faith in the system.

Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 9

100. This court in State of U.P. v. Ramesh
Mishra and Anr. [AIR 1996 SC 2766] held that it is
equally settled law that the evidence of hostile witness
could not be totally rejected, if spoken in favour of the
prosecution or the accused, but it can be subjected to
closest scrutiny and that portion of the evidence which
is consistent with the case of the prosecution or defence
may be accepted. In K. Anbazhagan v. Superintendent
of Police and Anr. [AIR 2004 SC 524], this Court held
that if a court finds that in the process the credit of the
witness has not been completely shaken, he may after
reading and considering the evidence of the witness as a
whole with due caution, accept, in the light of the
evidence on the record that part of his testimony which
it finds to be creditworthy and act upon it. This is
exactly what was done in the instant case by both the
trial court and the High Court and they found the
accused guilty.

101. We cannot, however, close our eyes to
the disturbing fact in the instant case where even the
injured witness, who was present on the spot, turned
hostile. This Court in Sidhartha Vashisht @ Manu
Sharma v. State (NCT o Delhi) [(2010) 6 SCC 1] and in
Zahira Habibullah Shaikh v. State of Gujarat [AIR 2006
SC 1367] had highlighted the glaring defects in the
system like non-recording of the statements correctly by
the police and the retraction of the statements by the
prosecution witness due to intimidation, inducement
and other methods of manipulation. Courts, however,
cannot shut their eyes to the reality. If a witness
becomes hostile to subvert the judicial process, the
Courts shall not stand as a mute spectator and every
effort should be made to bring home the truth. Criminal
judicial system cannot be overturned by those gullible
witnesses who act under pressure, inducement or
intimidation. Further, Section 193 of the IPC imposes
punishment for giving false evidence but is seldom
invoked.

14. So far PW-10 and 11 are concerned, admittedly,
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 10

they happen to be formal in nature and their evidence happens to be in

the background of non examination of the Investigating Officer.

15. So far PW-12, Dr. Mini Rani is concerned, she

had examined the victim on 14.04.1997, after so many days of the

alleged occurrence and that being so, she rightly found absence of any

kind of external injury save and except tracing out the hymen old

ruptured, torn and on that very score opined the victim to be subjected

to sexual intercourse. At the present moment, the finding of doctor

relating to her age is also to taken into consideration whereunder she

estimated the age of the victim to in between 16-17 years. From the

injury report (Ext-3), it is evident that victim was not at all examined

by the medical board or at least by an Orthopedic or Radiologist

having expertise on the subject and that being so, to what extent her

finding being a Gynecologist would be relevant over estimation of age

of the victim cast a mark of interrogation. Irrespective of the fact that

she was X-rayed by Dr. S.P. Saha, Radiologist, who though given

some sort of finding on that very score but not over the age which

happens to be an independent finding of PW-12.

16. In the aforesaid background, now the evidence

of the prosecutrix, PW-1 is to be seen. She had deposed that the

occurrence approximately happened five years ago. It was day time.

At that very time, she was sleeping at her house over a cot. She woke
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 11

up after perceiving some pressure over her breast whereupon she saw

appellant having his hand over her breast. Identified the accused in

dock. She tried to raise alarm whereupon, her mouth was gagged.

Then, after removing her clothe, he committed rape. During midst

thereof, his hand got removed from her mouth whereupon she raised

alarm. Her mother and Chandu Murmu arrived. At that very time,

accused was committing rape upon her. On hue and cry raised by her

mother and Chandu Murmu, so many persons came seeing whom,

accused ran away. Then she had disclosed the whole event to the

persons assembled there. Thereafter, case has been instituted, she was

medically examined. During cross-examination, she had stated at

para-4 that the house of accused happens to be adjacent to her house

and is known since childhood. At para-5, she had further stated that

her parents are alive. She happens to be three brothers as well as two

sisters. All the three brothers are elder to her. The eldest brother is

aged about 40 years. Her younger sister is aged about 20-22 years. At

para-11, she had stated that she was not in love with the accused. She

had not developed physical intimacy with anybody. In para-14, she

had stated that after having hand of the accused over her breast, she

woke up. She raised alarm attracting Chandu Murmu, then her parents

along with co-villagers came. Accused ran away. In para-15, she had

stated that she had removed hand of accused from her breast. While
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 12

he was removing her Sari and clothe, she tossed. She stood up leaving

cot. In finishing all the work, it took half an hour. She had protected

her genitalia by her hand. There was no discharge of semen. In para-

16, she had stated that Panchayati took place on 27.03.1994. She had

also participated. The accused and his father had also participated. It

was resolved in Panchayati that accused will keep her after marrying.

It happens to be the custom of Santhal community to which she

belonged. Accordingly, she had gone to Nirmal’s house, stayed there

for 5-6 days. During midst thereof, he developed physical intimacy

with her and then thereafter, she was kicked out as the accused

refused to marry. In para-17, she had stated that the case has not been

compromised. She has not yet been married. She is residing at the

place of her father. In para-18, she had stated that it is not a fact that

she has got a bad character. She again denied the suggestion that she

was in love with Nirmal and under the garb of aforesaid event, she

had developed physical intimacy with him. She had further denied

that she wanted to marry with Nirmal but as he refused, on account

thereof, instant case has been registered. She had further stated that

she was medically examined one day after the occurrence.

17. PW-2 is Pradhan Murmu, father of the victim.

He had deposed that the victim happens to be his daughter and on the

alleged date and time of occurrence, he along with his wife had gone
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 13

to do menial work leaving prosecutrix alone. After hearing some sort

of commotion, he rushed. On query his daughter has disclosed that

while she was sleeping, Nirmal intruded inside the house and then

raped her. When he reached at the house, Chandu Murmu and his wife

were present since before who had disclosed that they have seen the

accused, Nirmal fleeing therefrom. Then had gone to the house of

Nirmal and inquired about the same. There was Panchayati in the

village whereunder accused had also participated. He confessed his

guilt. He took the victim to his place where kept her as his wife and

then kicked her out whereupon instant case has been registered.

During cross-examination at para-4, he had stated that he has three

sons and two daughters. In para-5, he had further stated that they all

have gone on work. In para-6, he had stated that house of Nirmal lies

adjacent to the house in the middle of village and are on visiting

terms. His statement was recorded by the police. In para-8, he had

stated that he had gone to his field along with his wife. After hearing

noise, his wife firstly rushed. He came later on. In para-10, he had

stated that when he reached at the place of occurrence 10-15 persons

were present since before. He talked with his wife, daughter. On that

day, he had not gone to anybody. On the following day, Panchayati

was convened, then detailed the same with regard to event of

Panchayati as well as keeping the victim at his place by the accused
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 14

for five days and then kicking her out. At para-11, he had further

stated that during course of statement before police, he had stated that

the victim had disclosed that while she was sleeping, she was ravished

by Nirmal. He had also disclosed that Chandu Murmu and his wife

had disclosed that they have seen the accused fleeing from his house.

In para-12, he had stated that he talked with Nirmal during course of

Panchayat. Then had denied the suggestion that as he intends to

forcibly marry the prosecutrix with Nirmal, on account thereof, this

case has been filed. Then had disclosed that prosecutrix is still

unmarried. He had denied that she has been married with Vishnu

Hembram.

18. PW-3 is mother of the victim. During her

examination-in-chief, she had stated that on the alleged date and time

of occurrence while she was working in her field along with her

husband, she heard noise coming from her house whereupon, she

rushed as her daughter, prosecutrix was alone. Alarm was being raised

by her daughter. When she reached, she found Nirmal, her co-villager,

coming out from her house and then ran away. She tried to caught

hold of him but he escaped after pushing her. Her daughter had

disclosed that while she was asleep Nirmal came, caught hold of her

breast and then raped her. On that very score, there was Panchayati

whereunder Nirmal accepted his guilt and volunteered to marry. He
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 15

took away prosecutrix as per prevailing custom. After retaining 2-4

days, kicked her out. On account thereof, the instant case has been

registered. Furthermore, it has also been disclosed by her that on

account of instant occurrence, none is ready to marry with her

daughter. During cross-examination at para-7, she had stated that her

daughter alone had raised alarm. Nirmal was there. He was wearing

Lungi and Kameez. He flew towards western direction. He was

chased by villagers as well as her husband. She fell down on push

given by Nirmal. While prosecutrix had disclosed regarding the

occurrence, at that very time, so many villagers have assembled but

she is unable to disclose their names. In para-9, she had stated that

Panchayati took place on the following day but she is unable to say

the names of the persons who participated therein as was not present.

In para-10, she had stated that before Panchayat, Nirmal had accepted

his sin and also volunteered to marry. At the subsequent stage, her

husband had gone to inquire. Then had denied the suggestion that as

Nirmal refused to marry with the prosecutrix, on account thereof, this

false case has been instituted. She had further stated that if Nirmal

marries her daughter, then in that circumstance, this case will be

withdrawn.

19. It is needless to say that both the parties

belonged to scheduled tribes. From the evidence available on the
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 16

record, the status of the victim is found to be illiterate. Referring the

evidence of prosecutrix (para-9) on the score that she happens to be

major, is found ridiculous in the background of the fact that she has

shown age of her eldest brother as 40 years while age of her father

(PW 2) to be 45 years. Moreover, during course of cross-examination

of her parents, age of victim has not been tested nor there happens to

be suggestion at his end that prosecutrix happens to be major. In

likewise manner, PW-1, prosecutrix also not been tested on the score

that she happens to be major one.

20. To impeach the evidence of the witness or to

extract something positive from the witness, the witness has to be

confronted on that very score. The court would not form its own

opinion in absence of cross-examination or the material being

deficient one.

21. 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
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 17

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 sam e is
essential to ensure fair play and fairness in dealing with
witnesses.”

(Emphasis supplied)

22. That being so, it is conclusively found as the

status of the victim which she had specifically narrated in the

complaint petition to be aged about 13 years which never been

controverted at the end of the defence at least by way of suggestion

and in absence thereof, the defence had admitted status of the victim

to be minor. Furthermore, it is also evident that defence even during

course of suggestion having been given to the prosecutrix under para-
Patna High Court CR. APP (SJ) No.390 of 2015 dt.09-03-2018 18

18 whereunder it was suggested that she was in love with him and had

also admitted that she was continuing with physical intimacy, is

indicative of the fact that sexual indulgence at the end of appellant is

found admitted one. In that background, for proving consent, that too

voluntarily would have been properly flashed by way of cross-

examination that too, identifying her status to be major, that means to

say, aged about more than 16 year at the relevant time, one of the

exception of rape as prescribed under Section 375 CrPC and that

being so, the learned lower court had rightly found the appellant

guilty for an offence punishable under Section 376 IPC.

23. Consequent thereupon, instant appeal sans merit

and is accordingly dismissed.

24. Appellant is on bail, his bail bond is, hereby,

cancelled directing him to surrender before the learned lower court

within a fortnight to serve out the remaining sentence, failing which

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 15.03.2018
Transmission 15.03.2018
Date

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