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Sk. Baltu vs The State Of Bihar on 16 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.308 of 2015
Arising Out of PS.Case No. -34 Year- 2007 Thana -AM DABAD District- KATIHAR

SK. BALTU SON OF SK. PULLU, RESIDENT OF VILLLAGE – RAGHUNATH
PUR, POLICE STATION- AMDABAD, DISTRICT-KATIHAR.

…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR …. …. RESPONDENT/S

Appearance:

For the Appellant/s : Mr. Bimal Kumar, Adv.

Mr. Birendra Kumar, Adv.

Ms. Maruti Kumari, Adv.

For the State : Mr. Z. Hoda, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 16-03-2018

Appellant, Sk. Baltu has been found guilty for an

offence punishable under Section 376 of the IPC and sentence to

undergo R.I. for seven years as well as to pay fine appertaining to

Rs.15,000/- and in default thereof, to undergo S.I. for six months,

additionally vide judgment of conviction dated 15.05.2015 and order

of sentence dated 18.05.2015 passed by Second Additional District

Sessions Judge, Katihar in Sessions Trial No.270 of 2007.

2. (Name withheld) PW.3 filed written report on

04.05.2007 before the Officer-in-charge, Amdabad Police Station

disclosing therein that she happens to be aged about 16 years. On

last Dashara at about 10 AM her neighbour Sk. Baltu came in her

Aagan on the pretext of purchasing egg and then finding her alone,

teased and then committed rape. When she disclosed that she will

narrate the event to her parent, Sk. Baltu assured/promised that he

will marry with her so, do not disclose the occurrence to anybody.

Putting belief upon him she had not disclosed the same to anybody.

On the other hand, Sk. Baltu whenever found an opportunity being

her alone, under the garb of aforesaid promise indulged in physical
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 2

relationship as a result of which, she became pregnant. For the

present, she is carrying 4-5 months pregnancy.

When she disclosed the event to Sk. Baltu and further requested him

to marry over which, Sk. Baltu threatened her of dire consequence

and further, disclosed that he will not marry. Then thereafter, she

disclosed the event to her parents with whom has come to police

station where is filing written report. On the basis of the aforesaid

written report Amdabad34/2007 has been recorded under Section

376 of the IPC followed with investigation as well as submission of

charge sheet, facilitating the trial, meeting with ultimate result,

subject matter of instant appeal.

3. 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. However, no ocular e vidence has

been adduced on behalf of defence though Ext.A certified copy of the

order dated 23.01.2014 passed in Complaint Case No.52/2008 has

been filed, Ext.A.

4. In order to prove its case, prosecution had examined

altogether five PWs out of whom PW.1 is Sk. Jalil, PW.2 is Bibi

Shera, PW.3-victim, PW.4-Jagdish Pandey (Investigating Officer) and

PW.5- Dr. Renu Kumari as well as had also exhibited, Ext.1-

Signatrue of informant over written report, ext.1/2-Endorsement

over written report, Ext.2-Chargsheet, Ext.3-Formal FIR, Ext.4-

Medical Report.

5. Learned counsel for the appellant has submitted that

in spite of having positive finding recorded by the learned lower court

under para-16 of the judgment wherein it has been observed that

from the testimony of the victim i.e. prosecutrix, it is found that she
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 3

happens to be consenting party that being so judgment of conviction

and order of sentence would not have been passed. Furthermore, it

has also been submitted that when the court once informed and

recorded finding to the effect that indulgence under sexual activity

happens to be promiscuous under the garb of assurance of marriage

then, in that event, no offence under Section 376 of the IPC would be

maintainable rather, in worst case it would be breach of promise and

for that, section 417 of the IPC is applicable and for that the

appellant remained sufficient time under judicial custody whereupon

the sentence as already undergone should be recorded.

6. In an alternative, it has also been submitted that

though evidence of victim happens to be at upper pedestal but in the

given facts and circumstances of the case, her version could not be

accepted as, it suffers from vengeance and that being so,

independent corroboration was needed which is found absent and

that being so, considering the age, status, conduct under guise of

the evidence of PW.5, doctor, her evidence is fit to be discarded and

so, the finding having been recorded by the learned lower court

happens to be perverse and is fit to be set aside. Adding furthermore,

it has been submitted that there happens to be inordinate delay in

institution of the case without cogent explanation, whereupon,

considering entirety of the prosecution version, whole allegation is fit

to be found distrustful. In likewise manner, it has also been urged

that happens to be reason behind persistence of vagueness in the

prosecution case, as apart from non-substantiating the allegation,

the prosecution also failed to identify proper place of occurrence.

7. On the other hand, learned Additional Public

Prosecutor controverted the submission whatever been made on

behalf of learned counsel for the appellant and has submitted that
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 4

the first occurrence of rape happens to be the crucial point for

proper adjudication whether aforesaid activity was under the garb of

promise or not. If it happens to be under the garb of promise to

marry then, in that event, an offence under Section 376 would be

but, in the facts and circumstances of the case, it is evident that the

first attempt by which victim was confronted with sexual activity was

against her will and that being so, the subsequent activity though

being under the garb of consent would not exonerate the appellant

consequent thereupon, appeal is fit to be dismissed.

8. So far status of victim on the date of institution of case

is concerned, admittedly pregnant. With regard to her pregnancy the

finding of PW.5 coupled with her evidence that she was carrying

fetus of 27 weeks 2 days on the date of examination and i.e.,

ultimately resultant after indulgence in sexual activity. That being

so, she had indulged in sexual activity goes out of controversy. The

other circumstances which is visualizing from the evidence of PW.5

is, her age has been estimated in between 16-17 years. Accepting

variance of ± two years her age varies in between 14 to 18 years. The

age leaving upper side is to be accepted and so, victim as per medical

evidence was major on the date of the occurrence. No other evidence

is found at the end of the prosecution on that score. In the aforesaid

background now the ocular evidences are to be seen. Admittedly,

PW.1 and 2 (Parents) are not an eye witness but, whate ver they

deposed, that happens to be on the basis of the disclosure having

made by the victim PW.3. The most interesting feature while cross-

examining PW.1, father is manifest from para-5 of the cross-

examination wherein he was suggested that “it is wrong to say that

accused had not committed anything with his daughter rather one

Nasim is responsible for the occurrence”. In para-6 PW.1 had further
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 5

stated that if the accused wants to get victim and children examined

medically as well as through DNA test, he is free to pray for the same

which never been prayed for. PW.2 who happens to be mother of the

victim was cross-examined on that very score wherein she had

stated at para-8 that Nasim is not on visiting term. PW.3 is the

victim herself who had deposed that on the alleged date and time of

occurrence accused Sk. Baltu came inside her house on the pretext

of making query regarding egg. At that very time she was alone and

seeing her alone, committed rape. Accused then disclosed that he

will marry whereupon should not disclose the event to her parents.

He had not married with her. On account of commission of rape she

became pregnant. She had disclosed to accused whereupon he

threatened that in case of disclosure to anybody she will be

murdered. She had further stated at para-6 that she begotten a son

who is along with her. During cross-examination at para-7 she had

stated that she had filed written report before the police in the

month of Jeth. She was raped about 7-8 months prior to institution

of case. She was raped before Durgapooja. She had not

reported/informed regarding the same. In para-8 she had stated that

accused on the pretext of married continued with sexual proximity

with her consent. During said course, she had put belief over

undertaking of the accused. Then happens to be the subsequent

event. At para-10 she had denied the suggestion that she has got

intimacy with other persons of the village and during course thereof,

she might have sustained pregnancy and only to extract money, this

case has been filed. Then at para-12, she had stated that she had

not filed any case under Section 498A of the IPC but, she had filed

case relating to dowry. Then had denied the suggestion that she

happens to be more than 20 years. From perusal of her entire
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 6

evidence, it is apparent that no suggestion has been flashed to her

with regard to Nasim.

9. Defence had exhibited order dated 23.01.2014 passed

in Complaint Case No.52 of 2008 by the victim against the appellant

and others wherein by the order impugned, accused were

discharged. It happens to be a subsequent event which could not be

taken into consideration for the present purpose.

10. From the evidence available on the record, it is

apparent that incident is bifurcated in two parts. First part happens

to be with regard to commission of rape that was before the last

Dashara and the subsequent event happens to be at the later part.

Right from initial version that means to say written report there is

specific disclosure that firstly she was raped and when she disclosed

to appellant that she was going to narrate the occurrence of her

parents, accused had tendered promise to marry and as admitted by

the victim herself, subsequent indulgence though consensual, was

under guise of promise which was offered after the occurrence. So

far first occurrence is concerned, the victim has not been tested by

way of cross-examination. Now, the other aspect visualizing from the

lower court record has also to be seen. From the charge, it is evident

that that charge has been framed for the commission of rape before

Dushara. When the aforesaid theme is taken together with the

conduct of the accused, it is evident that during course of cross-

examination of PW.1 he had admitted that she was raped but not by

himself rather put by one Nasim. That means to say he was knowing

since before that victim was raped, whoever be the rapist. Then in

that circumstance, it was expected at his end to have in witness box

to say on an oath that he was not rapist rather rapist was the Nasim.

The aforesaid dubious conduct of the appellant is found duly
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 7

exposed when cross-examination of the victim PW.3 has been gone

through whereunder he had not identified Nasim to be responsible

for commission of the rape rather he had raised the issue suggesting

that victim happens to be characterless lady having lecherous

character associated with so many villagers and one of them might

have in pregnanted her. Though, in terms of Section 53A of the

Evidence Act such assertion could not be accepted or recognizable in

the eye of law. Furthermore, while cross-examining PW.1, he had

offered the accused/appellant to get the DNA tested which never

been suggested to victim nor any step was taken by the

accused/appellant for DNA test.

11. After considering earlier pronouncement in Karthi v.

State represented by Inspector of Police, Tamil Nadu reported in

AIR 2013 SC 2645, it has been held:

“14. The factual submission advanced at the
hands of the learned counsel for the appellant
was that the prosecutrix Poomari (PW 1) was a
consenting party to the sexual relationship
which the appellant-accused Karthick had with
her. That may be so at a subsequent stage, yet
it is not possible for us to accept the instant
submission advanced at the hands of the
learned counsel for the appellant for his
exculpation. The facts as they unfold from the
statement of the prosecutrix Poomari (PW 1)
are, that even before the first act of sexual
intercourse, the appellant-accused Karthick
used to tease her. He also used to tell her that
he wished to marry her. The fact that he had
sexual intercourse with her, when the
prosecutrix Poomari (PW 1) was all alone in her
house, is not disputed. The prosecutrix
Poomari (PW 1) has confirmed in her
deposition, that at the time of the first sexual
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 8

intercourse with her at her house, the
appellant-accused Karthick had gagged her
mouth with his right hand. He had promised to
marry her, by placing his hand on her head,
after having ravaged her. The subsequent acts
of sexual intercourse, were actions of actively
cheating her, by giving her the impression that
he would marry her. The occurrence at the
Murugan temple, is of significant importance.
At the temple, for the first time the appellant-
accused Karthick told the prosecutrix Poomari
(PW 1), that he would not marry her. The
instant factual position has been confirmed by
Chandran (PW 9) and Ilangovan (PW 10).

Despite lengthy cross-examination, the
appellant-accused has not been able to create
any dent in the testimony of the prosecutrix
Poomari (PW 1). In the aforesaid view of the
matter, we confirm the concurrent
determination of the courts below, that the
appellant-accused Karthick committed deceit
with the prosecutrix Poomari (PW 1) by
promising to marry her. On the strength of the
said deception, in the first instance persuaded
her not to disclose the occurrence to anyone,
and thereafter, repeatedly had sexual
intercourse with her. Therefore, in the facts
and circumstances of this case, it is not
possible for us to accept the contention
advanced on behalf of the appellant-accused
Karthick, that sexual intercourse by the
appellant-accused Karthick with the
prosecutrix Poomari was consensual.
Obtaining consent by exercising deceit, cannot
be legitimate defence to exculpate an accused.”

12. Consequent thereupon, instant appeal fails and is

accordingly dismissed. Appellant is on bail, his bail bond is cancelled

directing him to surrender before the learned lower court within
Patna High Court CR. APP (SJ) No.308 of 2015 dt.16-03-2018 9

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 19.03.2018
Transmission 19.03.2018
Date

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