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Shib Shankar Kisku vs State Of West Bengal on 14 February, 2020

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In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side

Present:-
The Hon’ble Justice Sahidullah Munshi.
And
The Hon’ble Justice Subhasis Dasgupta.

CRA No. 646 of 2014

Shib Shankar Kisku
Vs.
State of West Bengal

For the Appellant : Md. Sarwar Jahan, Adv.
Md. Ashraful Huq, Adv.
Mr. Firoze Hassan, Adv.
Ms. Mousumi Mitra, Adv.

For the State : Mr. Arun Kumar Maity, Ld. A.P.P.
Mr. Narayan Prasad Agarwala, Adv.

Heard on :17.09.2019, 20.09.2019, 11.11.2019,
18.11.2019 22.11.2019

Judgment on : 14.02.2020

Subhasis Dasgupta, J:-

This criminal appeal is against the order of conviction and sentence.

Learned Additional Sessions Judge, 2nd Court, Purulia, by his order of conviction

dated 22.08.2014 and sentence dated 25.08.2014, in Sessions Trial No. 9 of

2010, arising out of Sessions Case No. 34 of 2014, convicted the
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accused/appellant after holding him guilty for offence under Section

376/448/506 (Part-1) of Indian Penal Code, and sentenced him to suffer ten (10)

years rigorous imprisonment with a fine of Rs.5000/- (rupees five thousand), in

default to suffer rigorous imprisonment of one (1) year for the first count, and six

(6) month for the offence under second count, and one (1) year for the offence

under third and last count. The established facts during trial may be mentioned

here for addressing the issue raised in this appeal most effectively, which may be

mentioned as hereinbelow.

A tribal girl belonging to Santal community perusing her study in class VIII

of a school was physically violated by accused of tribal community living in the

same village on 7th Ashar 1415 B.S. corresponding i.e. 22.06.2008, getting her

alone in home during day time. The accused/appellant subjected the victim girl

to threat on repeated occasions while doing physical violation putting her in a

fear of death. The girl concealed her physical violation by accused to her parents

in consequence of threat of accused. The parents of the victim suddenly noticed

physical changes of victim daughter, when on being interrogated, the victim

carrying then six (6) months old pregnancy, narrated everything to her parents as

to how her pregnancy was brought about pointing out her finger towards the

accused/appellant, as culprit of her pregnancy. The bewildered parents sought

for interference of their Majhi Samaj, what is largely followed in the Santal

Community for a local resolution of the dispute cropped up in them with an effort

for a discussion in salish so that there could be an arrangement of marriage of

their daughter. The accused/appellant remained absent on two dates in the
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meeting. The de-facto complainant/father of the victim girl had to obey the

instruction/decision given by his fellow community members asking the father to

wait for few months, and upon completion of which the de-facto complainant

father was given free hands to take recourse to law. In the mean time, the

victim/prosecutrix had delivered a child. Irresistibly there was delay of about

seven (7) months thus caused in lodging the F.I.R.

The defense version in simpliciter is that victim girl consented to the sexual

act performed on her mutually and voluntarily, as the victim girl was about

twenty (20) years of age at the relevant point of time. So, the sexual intercourse

was held by reason of conscious decision of the victim girl for her consent to the

sexual acts performed voluntarily.

The Trial court after framing charge under Section 376/448/506 I.P.C.

against the accused person proceeded to hold trial, and ultimately concluded the

trial collecting as many as sixteen (16) witnesses, out of which PW-1 is the victim

herself, while PW-2 and PW-4 are the parents of the victim girl, PW-3 to PW-5 are

the aunt and uncle respectively, PW-6 determined the potency of accused, PW-7

to PW-9 are the co-villagers attending the salish convened for the purpose at the

request of the PW-4 so that there could be an arrangement of marriage of the

victim girl, PW-10 is doctor examining the victim and measuring/calculating age

of pregnancy of victim, PW-11 is doctor performing Ossification Test for the

determination of age of the accused, PW-12 is Recording Officer, PW-13 is the

scribe of F.I.R, PW-14 is doctor performing Ossification Test for the determination
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of age of the victim, and PW-15 and PW-16 are the Investigating Officers in this

case.

Learned advocate for the appellant principally focused his argument urging

two (2) submissions. Firstly; he strenuously made his submission that the age of

the prosecutrix was much above sixteen (16) years, when she already reached

her age of discretion and the victim/prosecutrix having reached to her age of

discretion consented to the alleged act of physical violation voluntarily, what had

already been admitted by the prosecutrix, claiming to have been violated on

repeated occasions i.e. as many as 5-6 times in her own house.

Secondly; he urged that when there had been inordinate delay in filing the

F.I.R., there left sufficient space during the intervening period of delay to make

exaggeration or embellishment in the version of the prosecution story and for

such inordinate delay remaining unexplained, the conviction of appellant should

not be sustained in law, and liable to set aside.

Raising such arguments, the learned advocate for the appellant proposed for

rendering the appellant’s conviction to be bad in law, and setting aside the

sentence accordingly, which we feel inclined to address the points, raised

hereinabove by the discussion made hereinbelow.

The respondent/State challenged the appeal supporting the order of the

Trial Court taking recourse to the presumption contained under Section 114(A) of

Evidence Act, read with Section 90 of the Indian Penal Code. The

respondent/State strongly contended that the testimony of the prosecutrix
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denying to have consented to the sexual acts not having been discredited in the

cross-examination, the same would stand, and the consent to the sexual acts

was not a conscious decision of prosecutrix/victim, and rather it was obtained by

the accused/ appellant putting the victim in a fear of death.

At the very threshold of this case, this is to be put on record that a tribal

girl pursuing her study in class VIII, came before the court alleging her physical

violation, by a person, who of course belonged to a tribal community, living in the

self-same village, wherein the victim/prosecutrix had her ordinary residence.

Another significant fact is that it is not a case of accused/appellant that the

doctrine of promiscuity would be attracted against the victim/prosecutrix for her

promiscuous behaviour, wherein the sexual intercourse was held upon the

victim with a promise to marriage.

In a tradition bound society, tribal people of Santal community observe

some peculiar social customs, which get automatically inculcated into such tribal

girl (victim girl), while facing upbringing in the family and thus strongly inducing

her (victim/prosecutrix) to follow the same in future. We cannot be oblivious of

the fact that still tribal people even after the progress of civilisation, since the day

of our independence, would prefer to settle their own disputes locally by the

headman of their community, when there is fear of being ostracised from their

own community in the event of showing any disrespect or causing any disobey to

the decision reached by the headman of their community.

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The point now raised, needs to be addressed taking note of practice,

precedent and customs of such tribal community followed in the instant case,

and the extent of evidence adduced to that effect.

As regards the first point raised in this case, the appellant’s stand was that

victim was a consenting party to the act of physical violation, and she was about

twenty year old, and thus, the pregnancy of the victim was the fall out of the

consensual sexual act performed mutually between the parties.

It goes without saying that victim (PW-1), graphically described in her

cross-examination the manner, when she was ravished forcibly, making it more

strengthen than what she had stated in her examination in chief. She stated that

on 7th Ashar, 1415 B.S. corresponding to 22.06.2008, while she was alone in the

veranda of her house, at about 1-2 P.M. suddenly accused/appellant appeared in

front of her veranda of the house, touched her body and dragged her inside the

room. The victim neither had any previous acquaintance with the accused, nor

any speaking/visiting terms with the accused/appellant. The victim could see the

accused in the village as a co-villager, and nothing else. As soon as the

accused/appellant touched her body, she could discover the culpable intention of

accused/appellant. After dragging the victim, she was made undressed by

accused, and then committed rape upon her providing no scope to raise any voice

against the act of physical violation committed upon her. She consistently spoke

in her cross-examination that she had been over powered by the accused due to

pressing her mouth so that she could not raise any voice. She maintained her

stand in evidence that the accused threatened her not to disclose the incident to
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anybody, else he would finish her. She claimed to have been ravished several

times (5/6 times) by accused/appellant in her own house, and that too in day

time and all the times accused threatened her with dire consequence, and as a

result of which she could not narrate the incident to her parents till her

pregnancy was detected by her parents, manifested with changes of her physical

appearance. Thus, pregnancy of the victim girl was disclosed by victim girl to her

parents when she was carrying about six (6) months old pregnancy.

As regards the topography of the house, wherein the victim was subjected

to repeated physical violation by the accused/appellant, evidence is there, as

revealed from the cross-examination of witnesses (PW-1 to PW-5), that both

parents of the victim and uncle’s family of the victim, reside in same bastu,

sharing a common courtyard, and at the relevant point of time, the main gate of

the house of the victim was closed, and when there was no family member

available in the house of victim.

There was no cross-examination even in the form of putting suggestion of

denial that the family members of the uncle of victim had their enough occasion

to remain present at the relevant point of time in the house, and providing them

sufficient scope on their part to notice the accused/appellant visiting the house

of victim on the relevant dates, while she was alone.

The pregnancy of the victim demonstrated with her certain physical

changes in her appearance provided parents (PW-2 and PW-4) to know about

such ill doings, and on being interrogated, the victim disclosed for the first time
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about the cause of her pregnancy, and it was brought about by whom. The

victim explained to her parents that having received threat of dire consequence

all the times, she was made to face physical violation by accused. She had

received threat requiring her not to disclose the same else, accused would finish

her.

Since in a case of rape the testimony of victim prosecutrix is of highest

significance, relying upon which there could be conviction without any

corroboration, provided the version of the testimony is otherwise acceptable, the

accused/appellant challenged to discredit the credibility of the version of victim

referring her own evidence, wherein she admitted to have been subjected to

repeated physical violations by accused, and that too in day time all the times in

her own house, and when the victim did not raise any voice, in spite of having

sufficient opportunity there at the moment, which according to appellant, would

not have been possible, had there not been any consent of victim girl.

Learned advocate for the appellant argued that since the victim was more

than twenty (20) year old girl at the relevant point of time, she voluntarily

consented to the sexual acts performed upon her, and did sex in an enjoying

manner, and subsequently preferred to conceal the same for a considerable

period of time giving sufficient indulgence to accused for her further physical

violation in a repeated manner. Adverting to the evidence of PW-4 (father of the

victim), learned advocate for the appellant argued that the father was aware of

the sexual relationship of her daughter with accused, as on the first date itself

i.e. 7th Ashar 1415 B.S., the father could know about the act of having committed
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physical violation forcibly upon his daughter from his wife, after he had returned

back to his house from the field. According to appellant, despite knowing such

incident with formidable impact of it, nothing could be raised in expression of

grievance, and rather ignored the same giving scope to his daughter (victim) to

continue and grow her sexual intimacy with the accused. And thus, such

inaction on the part of the father of victim till appearance of pregnancy of her

daughter was highly indicative of sexual intimacy of the victim daughter with

accused inconsequence of their mutual affairs at least with the knowledge of

parents of victim girl.

The respondent/State controverting such argument raised by the appellant

submitted that accused managed to obtain submission of victim, a mere act of

helpless resignation in the face of inevitable compulsion by reason of the threat

being exerted upon the victim, which could not be construed to be conscious

decision of victim, while she was put to face physical violation on repeated

occasions, and that too getting her alone in her own home during day time.

Upon visualizing the evidence of PW-2 and PW-4 (who are parents of the

victim), PW-3 and PW-5 (the aunt and uncle of the victim) and PW-7, PW-8 and

PW-9, (who are witnesses attending the salish held over the issue), it appears

that the family members of the victim girl virtually noticed the physical changes

of the victim girl in the month of Agrahayan, when victim was carrying six (6)

months old pregnancy, as determined by PW-10 (doctor), and on being

interrogated, the victim narrated the cause of her pregnancy, and how it was

brought about to her. Since, victim herself did not disclose anything in her
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evidence providing her father to know about the cause of her pregnancy, and

further the mother of the victim not having disclosed anything to her husband

(PW-4), contrary to the statement of victim daughter, the evidence of father of the

victim (PW-4) ascertaining to have gathered knowledge on the first day of incident

would be without any credence in view of provisions contained in Section 6 of the

Evidence Act.

The parents of the victim girl in particular, the father of the victim girl

having known such incident after being disclosed by their daughter, was not

prepared to take it lightly without any action on his part. The father informed

the headman of his community to call for a village salish (meeting). PW-7 and

PW-9 attended such salish as members of such salish, PW-8 attended such

salish being a headman of Majhi Samaj (Santal Community). According to PW-7,

8 and 9, out of which, PW-9 was then elected Panchayat member, on the two

dates, scheduled for the purpose i.e. on 23rd and 24th Agrahayan 1415 B.S. the

accused remained absent, and as a result no decision could be reached, which

was basically called for discussion, so that there could be an arrangement of

marriage of the victim girl. The father (PW-4) then had to wait for few months

after being requested by their community people, even after the entire effort of

calling for a salish proved to be a futile exercise.

Learned advocate for appellant in his conscious effort to establish a case

with positive consent against the allegation of commissioning physical violation,

further drew attention of the court to the evidence of PW-8 (headman of Majhi

Samaj), wherein the headman stated that meetings were called upon to state that
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a relation was grown up between the victim and the accused/appellant.

Referring such evidence, learned advocate for the appellant persuaded us to

believe that besides consent sexual intimacy would not have made possible and

upon appreciating the same, the accused appellant ought not to have held

convicted.

While submitting a case of consent in respect of the physical violation of

victim, learned advocate for the appellant incidentally focused upon the evidence

of PW-14 (the doctor holding Ossification Test of the victim), wherein the doctor

determined the bone age of the victim to be above 18-20 years on 03.02.2009,

and encashing such piece of evidence, a very strong argument was raised that

victim was much above 18 year old on the date of incident after application of

relaxation of two years as per precedent. A further reference was drawn to the

evidence of PW-4, wherein the father of the victim made statement disclosing the

present age of his victim daughter, as 18 year old on the date of adducing

evidence i.e. on 2nd August, 2010. Taking support of the Ossification Test Report

of the victim together with the testimony of father of the victim disclosing the

present age of the victim, a sincere effort was made to establish that victim was

at least above 16 year old on the date of incident, when she had already reached

her age of discretion so as to give her free consent to the sexual act committed

upon her mutually and voluntarily.

To embolden the stand of appellant, learned advocate for the appellant

relying on decisions; reported in 1982 SCC (2) 538, delivered in the case of Jaya

Mala Vs. Home Secretary, Government of Jammu Kashmir Ors.,
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submitted that the ratio decided in that case was that for the determination of

age of a victim girl, one can take judicial notice that the margin of error in age

ascertained by radiological examination is two (2) years on either side, (2008) 15

SCC 223, Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, submitted

that ratio decided in the case of Vishnu Vs. State of Maharashtra reported in

(2006) 1 SCC 283, propounding that the opinion of the Medical Officer is to

assist the court as he is not a witness of fact and the evidence given by the

Medical Officer is really of an advisory character and not binding on the witness

of fact, was reinforced in such case that the determination of age done medically

by the doctors should be given flexibility of two (2) years on either side, AIR 2003

SC 2081, delivered in the case of Jinish Lal Sha Vs. State of Bihar, wherein

the Apex Court reversed the order of conviction after it was affirmed by the

concerned High Court in a judgment of a Trial Court under Section 366A/376

holding the accused to be guilty. The Trial Court and the concerned High Court

while maintaining conviction, believed the testimony of the victim girl together

with the radiological determination of age of victim without taking care of the

testimony given by the father of the victim girl. The testimony of father of victim

girl was sufficient enough to reveal the age of victim daughter, when she was

taken away by the accused, and it was 19 years on that day. The Apex Court

considered the age of the victim given by the father of the victim, compared to the

other evidence, like testimony of the victim girl and radiological examination

report of the victim girl in determination of her age, and upon consideration of

which the Apex Court addressed the issue observing that when the victim left the
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house of the father, she was not less than 18 years of age. Besides above, the

mandatory requirement in regard to her consent having appreciated properly by

the Apex Court, the accused was favoured with acquittal.

Since, the victim/prosecutrix reached to a vulnerable age at the moment,

when she had been physically violated on repeated occasions for her consent to

the sexual acts, learned advocate for the appellant relying on a decision reported

in (1981) 1 SCC 107 in the case of Maru Ram Vs. Union of India submitted

that upon application of age relaxation of two (2) years on either side in respect of

the bone age, determined by the radiologist in course of the Ossification Test of

victim girl, the benefit of doubt in the given set of facts ought to have been given

to the accused/appellant instead of convicting him. In the referred case, the

constitutionality of Section 433(A) Cr.P.C. was challenged in writ jurisdiction

before the Apex Court after the accused was held convicted and sentenced

appropriately, when it was propounded by the Apex Court that benefit of doubt

should be in favour of the accused committing the crime. In the case at hand,

there is hardly any scope to favour the accused with benefit of doubt, where the

victim/prosecutrix consistently denied to have consented to the sexual acts

leaving no chance to apply the benefit of doubt, even after application of age

relaxation of two years.

In the case referred by appellant, reported in (2018) 9 SCC 248, delivered

in the case of Rajak Mohammad Vs. State of Himachal Pradesh, the victim

had freely moved around with accused/appellant, and in course of such

movement the victim came across many people at different point of time, when
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the victim did not complain of any criminal act on the part of the accused so long

she remained in the company of accused/appellant. The case in hand revealed

that the victim was violated on several occasions in her own house, and that too

during day time. In the referred case, the victim/prosecutrix contradicted her

previous statement, unlike the case in hand. In support of age of the victim, the

school admission form and the certificate issued by the school were produced in

evidence. The teacher of school, where the victim pursued her study at one point

of time, proved the admission form. The details of the admission register were

entered obtaining information from school leaving certificate, issued by a

government primary school. The certificate issued by the government primary

school on the basis of which the details in the admission form, were entered,

remained un-exhibited in the trial. The mother of the victim also remained

unexamined in such case. Upon consideration of the totality of the facts in such

case, the benefit of doubt was granted to accused/appellant. The referred case is

thus, distinguishable on facts from the case under reference.

State/respondent assailing such argument of the appellant submitted that

the Ossification Test Report could not be a conclusive proof of age where

flexibility of 2 years on either side had become the binding precedent as per

consistent view of the Apex Court, and on applying age relaxation of 2 years on

the lower side of the age, as found in the Ossification Test Report, the

victim/prosecutrix could be safely taken to be less than 16 years of age at least

on the date of incident i.e. on 22.06.2008, corresponding to 7th Ashar, 1415 B.S.,
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leaving no scope for the victim to exercise her free and conscious consent to the

sexual act committed upon her, complained of.

Thus, according to State/respondent, the consent of a minor, if given or

obtained otherwise than on consent to the sexual act, complained of, prior to

reaching her age of discretion, would be without any relevance.

A perusal of the evidence adduced by the Investigating Officers (PW-15

and PW-16), reveals that none of the Investigating Officers ever attempted to

collect any age proving document of the victim girl, at least the school certificate,

wherefrom the victim last studied. The categorical evidence of the victim/PW-1 is

very significant to reveal that at the time of occurrence, she was a student of

class VIII of Malancha High School, and further she stopped her study two years

ago, which she revealed in course of her evidence given on June, 2010, in

response to an incident held on 22.06.2008.

It is equally more true that there was no cross-examination intended to any

of the Investigating Officers for having an explanation from the Investigating

Officers as to what prevented the Investigating Officers from collecting such age

proving document of the victim girl for appropriate application of adverse

presumption, contained in Section 114(g) of Evidence Act.

As regards the consent, the State/respondent while supporting the order of

conviction, argued that when the victim/prosecutrix in her evidence consistently

stated that she had been violated several times, getting her alone in the home

after putting her in a fear of death, which received corroboration not only from
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the parents of the victim (PW-2 and PW-4), but also from the aunt and uncle of

the victim (PW-3 and PW-5), and further the issue of putting the victim in a fear

of death by reason of the threat being exerted upon the victim, not being shaken

to doubt in cross-examination, there was no scope for drawing an inference that

the victim had taken her conscious decision and accordingly consented to the act

under reference.

Learned advocate for the respondent/State proposed for appropriate

application of the presumption available under Section 114 (A) of Evidence Act,

read with Section 90 of Indian Penal Code.

Reliance was accordingly placed by learned advocate for respondent/State

on a decision reported in (2005) 1 SCC 88, delivered in the case of Deelip Singh

@ Dilip Kumar Vs. State of Bihar, while advancing argument that the instant

case was otherwise than on consent i.e. consent was squeezed to be obtained

from victim girl forcibly, putting her in a fear of death, in consequence of threat,

and submitted further with much emphasis that whether a particular case of

this nature, where consent plays a predominant role, had to be adjudged from

the attendant circumstances, and in the given set of facts, the attending facts

were not supportive of coming to a definite conclusion that the act complained of

was a product of conscious decision of the victim to the sexual acts.

Reliance was further placed by the respondent/State on a decision reported

in 2015 SAR (Criminal) 388, delivered in case of Deepak Vs. State of

Haryana, while submitting that the instant case was such, where sexual
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intercourse was not at all disputed by the accused/appellant, and what was

challenged was the consent of victim to the sexual intercourse having held

several times mutually and voluntarily. Thus, according to respondent/State,

commission of sexual intercourse not being disputed upon the victim, and when

the victim/prosecutrix consistently stated in her evidence that she did not give

any consent to the sexual intercourse done by the accused on her, which

received corroboration from other witnesses, the court is obliged to draw the

presumption under Section 114(A) of the Evidence Act against the accused

holding that he had committed sexual intercourse on the prosecutrix/victim

against her will and against her consent.

Respondent/State further proceeded to derive capital from a decision

reported in (1996) 2 SCC 384 delivered in the case of State of Punjab Vs.

Gurmit Singh and Ors., while offering explanation as to what prevented the

victim and ultimately her parents from seeking redressal before the law

enforcing agency, for their grievance, quoting some of the observations, made in

Para-8 of such decision, that a girl, in a tradition-bound non-permissive society

in India, would be extremely reluctant even to admit that any incident, which is

likely to reflect upon her chastity had occurred, being conscious of the danger of

being ostracised by the society, or being looked down upon by the society. Her

not informing the teachers or her friends at the examination centre under the

circumstances cannot detract from her reliability. In the normal course of

human conduct, this unmarried minor girl, would not like to give publicity to the

traumatic experience, she had undergone and would feel terribly embraced in
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relation to the incident to narrate it to her teachers and others, overpowered by

feeling of shame and her natural inclination would be to avoid talking about it to

anyone, lest the family member and honour is brought into controversy.

Since a Santal community belonging minor girl having fallen a victim to the

insatiable hunger of sex, she cannot be expected to divulge the same ignoring all

sorts of ordinary consequence naturally to follow, for the stigma of the incident

attached with it, and upon consideration of the same, we most respectfully apply

the same subscribing our same view to the observation of the Apex Court given in

context with the situation making a victim girl most vulnerable at her age.

Contradictions, inconsistencies and discrepancies in the evidence without

being potent and major enough cannot be expected to reach to the very core of

the prosecution case and it should be disregarded. In order to fortify the same,

respondent proceeded to take shelter on a decision reported in (1999) 9 SCC

525, delivered in the case of Leela Ram (Dead) Through Duli Chand Vs. State

of Haryana Anr., wherein it was decided that minor embellishment and trivial

discrepancy would not themselves render the evidence unbelievable.

Regarding the necessity of corroboration, as regards the testimony of the

victim/prosecutrix, learned advocate for the respondent relying on a decision

reported in (2004) 8 SCC 153, delivered in the case of State of H.P. Vs. Shree

Kant Shekari, submitted that there was no rule of law that the testimony of the

victim could not be acted upon without corroboration in material particular.

Thus, according to respondent/State, the theory of corroboration is a rule of
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prudence, applicable in a case, where the face value of testimony of the victim

would be difficult to accept for some sufficient reasons, and the court in such

circumstances, would seek assurance to her testimony from other evidence.

Referring such decisions, it was sought to establish that apart form the

corroboration, the victim received in this case, her sworn testimony was sufficient

enough to base conviction.

In such scenario of rival submissions canvassed over the issue of consent

and age of victim girl, as advocated by either parties to this case, we are thus

called upon to answer whether the victim was violated with her consent or

without her consent.

Prior coming to the core issue, incidental determination of age of the victim

poses a great question to be equally addressed to by us. The first date of

occurrence, when the victim was first violated is on 7th Ashar, 1415 B.S.,

corresponding to 22.06.2008. On the date of adducing evidence, victim claimed

her to be of fifteen (15) year old, and she maintained such stand during her

statement made before learned Magistrate under Section 164 Cr.P.C. (Exhibit-1).

We are surprised to learn that the victim having pursued her study in a school at

Class VIII at the relevant point of time, the Investigating Officers failed to collect

any age proving document, though, victim was put up for Ossification Test for

determination of her age. It makes a strong sense for us to accept the settled

proposition in the given circumstances that the testimony of the

victim/prosecutrix, if alone can form the basis of conviction, provided the same is
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otherwise acceptable. The latches on the part of the investigation though, sought

to be encashed by the appellant taking aid of Section 114(g) of the Evidence Act,

but the testimony of the victim not having suffered from any infirmity or blemish

whatsoever, the same would inspire confidence.

Upon perusal of the evidence of the victim/prosecutrix, it appears that the

threat of the accused/appellant thereby, putting the victim in a fear of death

remained undiscredited in the cross-examination of victim/prosecutrix, and the

same, however, remained undisturbed even after putting an unproductive

suggestion, as regards the consensual sex, which was ultimately denied by the

victim.

The courts are supposed to deal with cases of sexual crime against women

with utmost sensitivity. Mere non-production of age proving document in the

given set of facts cannot be taken to be a strong ground, ipso facto to disbelieve

the age of the victim girl, as established during trial. Alternatively it may be put

in this way that the accused/appellant without having obtained any explanation

from the Investigating Officer by putting sufficient question during the cross-

examination, the circumstances are not supportive of drawing adverse

presumption under Section 114 (g) of the Evidence Act against the prosecution.

The Trial Court applying the age relaxation of two (2) years in lower side of

the bone age of the victim, assessed by radiological examination for Ossification

Test, arithmetically proceeded to ascertain the age of the victim on the date of

incident to be less than sixteen (16) year old keeping in mind the age of the
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victim, disclosed on her adducing evidence i.e. on 21.06.2010, for an incident

held on 22.06.2008. The entire exercise done by the Trial Court appears to have

been arithmetically reached, while making estimation of age of a victim in a case,

where neither the victim, nor her parents even disclosed the actual date of birth

of the victim girl.

The Trial Court thus, proceeded to calculate and estimate the age of the

victim girl, taking her to be of fifteen (15) years of age on 22.06.2208, as she

claimed to be of seventeen (17) years of age on 21.06.2010, the date on which she

adduced her evidence in court. The endeavour already put by the Trial Court for

the assessment of age of victim, in that view of the matter, cannot be doubted

anymore. However, if the testimony of the father of the victim (PW-4) is

considered, who described her daughter to be of sixteen (16) years of age on

02.08.2010, the day when he adduced evidence before the court, will not help the

accused to claim any benefit, without successful proof of consent of victim girl.

Therefore, even after taking into account the evidence of father of the victim (PW-

4), the victim can safely be described to the either about to reach the age of

discretion, or just crossed her age of discretion, rendering her status to be most

vulnerable. Even after assuming that the victim has just crossed her age of

discretion in recent past, that itself alone will not pave the way for acquittal

without discharging the burden of proof in rebuttal of the evidence of the victim

denying to have consented to the sexual acts performed upon her by reason of

threat perpetrated upon her.

22

So, mere reaching the age of discretion alone without making out a strong

case of consent, the assessment of the age, as reached by the Trial Court should

not be looked with suspicion.

The term “consent” appearing in Section 90 of Indian Penal Code appears

to have not been defined in positive sense, which may be reproduced hereunder;

“90. Consent known to be given under fear or misconception. –
A consent is not such a consent as is 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; or

[Consent of insane person] if the consent is given by a person who,
from unsoundness of mind, or intoxication, is unable to understand the
nature and consequence of that to which he gives his consent; or

[Consent of child] unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age.”

Whether a particular case of physical violation is with consent or absence

of consent, it is question of fact, which needs to be determined from the evidence

adduced in every case before invoking the rigour of Section 114(A) of Evidence

Act.

In the instant case, it is significant to note that during the examination of

accused under Section 313 Cr.P.C., the plea of consent remained unpleaded. The

appellant was not able to give any satisfactory explanation in his statement

recorded under Section 313 of the Code nor was able to adduce any defence to

rebut the presumption contained in Section 114(A) of the Indian Evidence Act,

1872 against him. As has already discussed that the credibility of PW-1 as

regards the threat, she had received while being physically violated, could not be
23

impeached even in her cross-examination inclusive of unproductive cross-

examination, ultimately being denied by the victim in her evidence, so the

accused/appellant miserably failed to make out a stand, contrary to the version

asserted by the victim herself. The question of consent is really a matter of

defense of the accused, and it is for the accused to place the material to show

that there was consent, in a case where victim specifically and consistently

denied to have consented to the sexual acts on several occasions.

The presumption engrafted in Section 114(A) of the Evidence Act is

rebuttable one, subject to discharge of onus in the event of onus being shifted to

accused in a case where victim denied to have consented to the sexual act. The

proof of burden as regards the consent in a case where defense is based purely

on consent, is thus directed against appellant.

While determining a case based on consent or absence of it, the same

could be gathered from the attendant circumstances, which was rightly referred

by the learned advocate for the State/respondent [Deelip Singh @ Dilip Kumar

(Supra)] to which we sincerely subscribe our same view on the issue. In an effort

to ascertain required consent, the previous or contemporaneous acts or the

subsequent conduct can be legitimate guide.

Let us look back once again to the evidence adduced during trial. Victim in

her evidence stated that she had no previous acquaintance with the accused, not

even any visiting terms. The victim only found the accused/appellant residing in

the same village, as her co-villager only. She was not even provided with any
24

circumstances to talk with the accused/appellant even before the incident. The

moment when she was first physically violated, she was alone in her home, when

the main gate of her house was closed. In such state of situation, the

accused/appellant managed his entry in the house of the victim getting

opportune moment, and which the accused/appellant continued to make use of

the same on repeated occasions, and that too in day time.

Evidence is there that the accused ravished the victim forcibly on several

times in her own house with a threat of dire consequence. The victim girl being

highly frightened of threat of accused did not dare to disclose the same even to

her parents. She was put to a strong panic stricken state of mind by reason of

threat of accused. She only tried to conceal the same out of her shyness and

shame, at the cost of protecting her chastity upon sensing the chance of being

ostracised from her own community till her biological changes, as noticed by her

parents, when she disclosed everything to parents pointing her hands to the

accused/appellant as culprit of her pregnancy. She disclosed that she was

overpowered by pressing her mouth so that she could not raise any alarm at the

relevant time. The cross-examination transpired nothing revealing animosity of

the members (PW-7, PW-8 and PW-9) attending the salish held for the purpose,

against the accused/appellant.

The pregnancy of the victim being brought to light, the accused/appellant

preferred to remain absent in the village meeting, though he in his unsuccessful

attempt during trial attempted to make a case of consensual sex with the victim

girl. It is something revealing connecting the contemporaneous acts and
25

subsequent conduct of the accused. There was nothing established

conspicuously in the cross-examination that there was prior meeting of minds

between the parties, which ultimately grew into a sexual intimacy between them.

The sequential events, if cumulatively considered together, as revealed

from the evidence in its entirety, the physical violation, testified by the victim

herself can hardly be regarded to be a conscious decision of the victim, performed

mutually and voluntarily giving her express and conscious decision to that act.

Consequently, the consent was squeezed to be obtained from the victim after

consistently putting her in a fear of death which, however, remained unshaken to

doubt during the entire cross-examination of victim herself.

Thus, in the absence of consent being established conclusively in the

cross-examination of witnesses, it can be concluded that the consent was

obtained by the accused putting her in a fear of death, and while making

physical violation of the victim, the accused had reason to believe that the

consent to the sexual act, he had already squeezed, was given by victim in

consequence of such fear of death.

In that view of the matter, when commission of sexual intercourse by the

accused on the prosecutrix was not a disputed question of fact, the unimpeached

testimony of the victim particularly on the point of threat being exerted upon her

by accused, while making physical violation on repeated occasions, would

automatically invite rigour of Section 114(A) of the Indian Evidence Act, against

the accused/appellant for the peculiarity circumstances involved in this case, so
26

as to render him liable to suffer conviction under Section 376 I.P.C., at least for

the date of first instance i.e. on 7th Ashar 1415 B.S. corresponding to

22.06.2008, when the victim was first physically violated forcibly receiving threat

from the accused/appellant, which was itself sufficient to determine the offence

under Section 376 I.P.C. against the accused/appellant. Thus, while talking of

offence under Section 376 I.P.C. is concerned, it was made complete on the date

of first incident i.e. 22.06.2008, and consent if subsequently perceived to have

obtained will not improbalise such incident.

As regards the second point raised, an attempt was made by the learned

advocate for the appellant to highly improbalise the prosecution story by reason

of long delay being caused in lodging the F.I.R. Admittedly there was long delay

of about seven (7) months caused in lodging the F.I.R. It was contended by the

appellant that such long delay remaining insufficiently explained left room for

concoction and embellishment in the version of the prosecution case.

Respondent State assailing such argument of the appellant submitted that

sufficient explanation had been offered in the evidence, examined by the

prosecution, and upon viewing such sequential events together, the delay so

occurred in lodging the F.I.R. could not be construed to be fatal for the

prosecution. The respondent State further submitted that victim was tribal girl,

of whom the degree of intelligence and exposure could not be equated with urban

girl.

27

It is a case where victim concealed her physical violation receiving a

continuous threat of accused until her pregnancy was noticed by her parents

seeing her physically changes, when she was carrying about six month old

pregnancy. A tribal girl perusing her study in class VIII cannot be taken to be

much sensitive, compared to an urban girl of the same class and same age. The

socio-economic background of the victim is an important aspect, which we are

obliged to consider bearing in mind the practice, precedent and customs

observed in Santal community still. The dehumanizing act of accused/appellant

made unlawful physical intrusion upon the victim, left indelible mark in her

psychological traits, apart from the ignominy, she would face in respect of herself

assessment and dignity. The chances of being ostracized from society in the

event of illegal doing being brought to light is still in practice in Santal

community. It might be with such understanding, the minor victim girl

continued to conceal the incident to her parents receiving a threat from accused

until it was detected by her parents by reason of her biological changes. Such

conduct of the victim as regards the concealment of the incident to her parents

cannot be taken to be unnatural, and not sufficient enough to improbalise her

own version. The bewildered father, like PW-4, of the victim girl having known

such incident in his first attempt, tried to socialize the same bearing in mind the

stigma ordinarily attached with the incident, simply for the purpose of making

her daughter suitably rehabilitated.

Since, there was a Santal Samaj, as testified by PW-8, such Samaj was

called upon to deliberate on that issue so that there could be an arrangement of
28

marriage. When everything turned to be futile exercise on two dates scheduled

for meeting, because of the non-appearance of the accused/appellant in the

meeting, the father of the victim had to obey the decision of his fellow members

committee asking him to wait for few months, and then to lodge the complaint

against the accused/appellant for appropriate redressal. So all such events, if

picturised sequentially, nothing could be safely concluded to be abnormal,

improbable and unnatural, and it was sufficient enough to explain the delay

caused in lodging the F.I.R. The settled proposition is that delay in lodging the

F.I.R., if satisfactorily explained will not become fatal for the prosecution. This is

a case where the delay has been sufficiently explained in the evidence itself,

though not disclosed in the F.I.R.

The sworn testimony of victim/prosecutrix being believable and inherently

probable will inspire confidence apart from the corroboration she received from

other witnesses, as discussed hereinabove. In the absence of any discrepancy in

her evidence, it is sufficient enough to leave honest impression that she had been

physically violated by the accused/appellant without her consent. We are not at

all impressed to favour the accused/appellant with benefit of doubt, as sought to

be applied over here, for the shifted onus of accused/appellant not being

appropriately discharged.

For the discussion made above, we do not want to interfere with the

findings reached by the Trial Court, while holding the accused to be guilty of

offence under Section 376 I.P.C. The order of conviction having been recorded

adhering to the principles of law and after making perfect appreciation of the
29

evidence adduced on that score, there is hardly any scope to declare that the

findings reached by the Trial Court are perverse being not based on evidence.

The other offences, so determined by the Trial Court being incidental to the

principle determination of offence under Section 376 I.P.C will, however, remain

uninterfered with, because it appears to us that such offences under Section

448/506 (Part-1) I.P.C. have been perfectly determined appreciating the evidence

rightly.

We also do not want to interfere with the sentence already awarded against

the accused/appellant for the offences, for the same being appropriately awarded

in the instant case.

Both conviction and sentence would thus go unaltered. We maintain the

conviction and sentence awarded in this case.

The criminal appeal fails being without any merits, and accordingly

dismissed.

All the sentence to run concurrently and the accused/appellant be

provided with opportunity of claiming set off under Section 428 Cr.P.C., if any, in

respect of the period already undergone in the correctional home.

With this observation, the criminal appeal stands disposed of.

Department is directed to send a copy of this order to the concerned

Superintendent of Correctional Home, where the convict/appellant is detained.
30

Department is further directed to send a copy of this judgment along with

Lower Court Record to the concerned Trial Court without causing any delay

through the concerned District Judge.

Urgent certified copy of this order, if applied for, be given to the appearing

parties as expeditiously as possible upon compliance with the all necessary

formalities.

I agree.

(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)

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