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Subodh Kumar vs The State Of Bihar on 27 June, 2018

Patna High Court CR. APP (SJ) No.1127 o f 2017 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.1127 of 2017
Arising Out of PS.Case No. -219 Year- 2013 Thana -LALIT NARAYAN UNIVERSITY District-
DARBHANGA

1. Subodh Kumar, S/o Late Suresh Prasad Choudhary, R/o Mohalla- Kathalwari,
P.S. L.N.M.U., District- Darbhanga.

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

…. …. Respondent/s

Appearance :

For the Appellant/s : Mrs. Soni Shrivastava-Advocate
Mr. Ravi Bhardwaj-Advocate
For the Respondent/s : Mr. Bipin Kumar-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 27-06-2018

Vide judgment of conviction dated 28.02.2017, appellant

Subodh Kumar has been found guilty for an offence punishable under

Section 376 of the I.P.C. and sentenced to undergo R.I. for ten years

as well as to pay fine appertaining to Rs.50,000/- and in default

thereof, to undergo R.I. for two years, additionally, with a further

direction that the period having undergone during course of trial

would be subject to set off in accordance with Section 428 of the

Cr.P.C. vide order of sentence dated 03.03.2017 passed by the 4th

Additional Sessions Judge, Darbhanga in Sessions Trial No.50 of

2015.

2. Name withheld victim/ informant (PW-5) filed

Complaint Petition No.1842 of 2013 on 07.11.2013, showing the date
Patna High Court CR. APP (SJ) No.1127 o f 2017 2

of occurrence from 15.02.2013 to 03.11.2013, having an allegation

that accused Subodh Kumar happens to be her neighbour as well as

distant relative on account thereof, are on visiting term. It has further

been disclosed that on 15.02.2013, the family members of the

informant had gone to participate in Saraswati Puja, whereupon she

was alone. At about 1.00 p.m. accused Subodh Kumar came at her

house, inquired about the other family members and then, having been

divulged by the informant that they all have gone to participate in

Saraswati Puja, he indulged in gossiping with her. Later on, she came

inside her house leaving him at her door, who followed her and after

closing the door, took control over her, gagged her mouth and then,

committed rape. Thereafter, she began to weep, whereupon Subodh

consoled her and said that he will marry. He further instructed not to

disclose to anybody on account thereof, she kept mum. Subsequently

thereof, on the pretext of promise of marriage, Subodh continued with

physical intimacy as a result of which, she became pregnant. She

divulged the fact to Subodh and requested him to marry, but he began

to push the matter ahead on one pretext or the other, whereupon she

disclosed the event to her parents. On 31.10.2013, her father convened

a Panchayati wherein it was resolved that accused should marry with

her on the same day and the venue was fixed at Shyama Temple,

Darbhanga where all her family members arrived, but neither Subodh
Patna High Court CR. APP (SJ) No.1127 o f 2017 3

nor any of his family members came. Then thereafter, she got herself

examined by a doctor on 01.11.2013, who found her pregnancy to be

of eight months. It has also been divulged that on 03.11.2013, her

family members had gone to the place of accused and requested to

marry, which was not only turned down rather her family members

were also assaulted.

3. The aforesaid complaint petition was referred to local

police for registration and investigation of the case as provided under

Section 156(3) of the Cr.P.C. Accordingly, University P.S. Case

No.219 of 2013 was registered, investigated, followed with

submission of chargesheet. Accordingly, trial commenced and

concluded whereunder other co-accused were acquitted while

appellant has been convicted and sentenced for in a manner as

indicated hereinabove, subject matter of instant appeal.

4. Defence case, as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial. It has further been pleaded that the

victim happens to be lady of easy virtue, might have indulged in

sexual activity with others, resulting pregnancy, whereupon insisted to

marry and on refusal by the accused got him involved in the instant

case by way of false and frivolous allegation. However, nothing has
Patna High Court CR. APP (SJ) No.1127 o f 2017 4

been adduced in defence.

5. Prosecution, in order to support its case, had examined

altogether nine PWs, who are PW-1, Sanjay Prasad Sah, PW-2, Jai

Narayan Sah, PW-3, Ranju Devi, PW-4, Pradeep Kumar, PW-5,

victim herself, PW-6, Manju Devi, PW-7, Lila Devi, PW-8, Swami

Nath Pandey and PW-9, Umesh Kumar Pandey. Prosecution had also

exhibited, Exhibit-1, signature of PW-2 over statement recorded under

Section 164 of the Cr.P.C., Exhibit-2, signature of PW-3 over

statement recorded under Section 164 Cr.P.C., Exhibit-3, formal

F.I.R., Exhibit-4, endorsement, Exhibit-5, statement of the victim

recorded under Section 164 Cr.P.C., Exhibit-6, statement of PW-3

under Section 164 Cr.P.C., Exhibit-7, statement of Biltu Sah recorded

under Section 164 Cr.P.C., Exhibit-8, statement of PW-2 recorded

under Section 164 Cr.P.C., signature of PW-2 over Panchnama (Photo

copy) marked as ‘X’ for identification, signature of PW-4 as ‘X/1’,

C.D. ‘X/2’ for identification. As stated above, nothing has been

adduced in defence.

6. Manifold argument has been raised in order to assail

the finding recorded by the learned lower Court. The first and

foremost argument happens to be that parents of the victim have not

been examined. Whoever been examined, are kith and kin of the

victim. Certainly, their status happens to be that of hearsay,
Patna High Court CR. APP (SJ) No.1127 o f 2017 5

inadmissible in the eye of law. It has further been submitted that from

the evidence of the victim, it is apparent that the same suffers from

vagueness, ambiguity, flexibility whereupon became unreliable. So, it

happens to be a case of no evidence.

7. In an alternative, it has also been submitted that victim

happens to be major. From her evidence, it is apparent that she was

under promiscuous relationship with the appellant and that being so,

her indulgence in the physical relationship happens to be

consensuous. As such, there happens to be no question of rape and so,

does not attract application of Section 376 of the I.P.C.

8. It has further been submitted that when the evidence of

the respective witnesses along with the victim are being minutely

evaluated, then in that circumstance, it is apparent that whatever

allegation has been attributed appears to be out and out an imagination

suffering from hollowness and further, has been alleged with a

purpose that appellant should give consent to marry with the so

alleged victim, whose sinful activities found already exposed. In the

facts and circumstances of the case, it has been submitted that no case

under Section 376 of the I.P.C. is made out.

9. Furthermore, putting reliance over Uday vs. State of

Karnataka reported in A.I.R. 2003 SC 1639 and Dilip Singh Case
Patna High Court CR. APP (SJ) No.1127 o f 2017 6

reported in A.I.R. 2005 SC 203, it has been submitted that from the

evidence available on the record, it is apparent that the victim herself

was deeply involved with the appellant and further, there happens to

be no fraud or deception at the end of the appellant at any earlier

occasion in getting consent at the end of the victim. Consequent

thereupon, it is fit case wherein judgment of the conviction and

sentence recorded by the learned lower Court is fit to be set aside.

10. On the other hand, learned Additional Public

Prosecutor while supporting the finding recorded by the learned lower

Court has submitted that right from beginning, it is apparent that

intention of appellant was to avail carnal pleasure and with such

intention, he firstly committed rape and then thereafter, advanced an

undertaking under the garb of promise that he will marry with her,

exploited the victim furthermore, who fallen prey on account of

deceptive, fraudulent approach of the appellant which ultimately

resultant in her pregnancy giving birth to a girl child putting scar mark

not only over her character, personality rather robbed of her precious

jewels. That being so, the conviction and sentence recorded by the

learned lower Court happens to be fit to be concurred.

11. From the L.C. Record, it is evident that in spite of

disclosure having been made thereunder that she was examined on

03.11.2013 by a doctor, who had found the victim carrying of
Patna High Court CR. APP (SJ) No.1127 o f 2017 7

pregnancy of eight months, neither the victim was examined during

course of investigation by the doctor at the instance of I.O. nor any

doctor has been examined during course of trial. It is not the fact that

the factum of rape is always to be proved by the medical evidence

only being corroborative in nature and for want of medical evidence,

the allegation of rape should be discarded, as has consistently been

held by catena of judicial pronouncement including Wahid Khan vs.

State of M.P. reported in (2010) 2 SCC 9, as in each and every case,

corroboration by medical evidence is not a sine qua, however, from

the suggestion, it is apparent that there happens to be no dispute over

the same, however been asserted on account of being girl of easy

virtue having physical intimacy with so many, which ultimately

resulted in her pregnancy.

12. Before coming to main part, it has also to be borne

that as per Section 53A of the Evidence Act, the previous character is

not of much relevance, moreover, has been suggested in bald way.

And the second event happens to be over presence of Section 114A of

the Evidence Act, whereunder if the victim has denied the consent,

then in that circumstance, it will be presumed subject to rebuttal at the

end of accused.

13. At this juncture, the plea taken by the defence during

cross-examination as well as during course of statement recorded
Patna High Court CR. APP (SJ) No.1127 o f 2017 8

under Section 313 Cr.P.C. has also to be taken note of whereunder the

accused/ appellant had not taken plea of consent, as he had blatantly

denied his indulgence.

14. Now, the witnesses are to be seen in order to trace out

whether they had substantiated the allegation or not. PW-1, as is

evident happens to be brother-in-law (Bahnoi) of the victim, who had

stated that on the alleged date and time of occurrence, he was at

Kathalbari, victim was alone at her house. Subodh Kumar came,

inquired about other family members and getting information that

they are away, intruded inside the house and committed rape. After

coming to know about the same, they have inquired from the victim,

who disclosed the event and then, he along with uncle of the victim

Jai Narayan, Ashok Sah, Santosh Sah with local inhabitants had gone

to the place of Subodh Kumar inquired from him, who disowned to

have committed rape. Then thereafter, Panchayati was convened

wherein it was decided that accused should marry with the victim at

Shyama Temple. Date was also fixed. Family members of the victim

have arrived, but none of the family members of the accused came,

whereupon they returned back. They have gone to the place of

accused to inquire, whereupon they were assaulted by them. Mother

of the victim died as she could not bore the stigma. Victim was

examined by Dr. Nagendra Jha. Then thereafter, this case has been
Patna High Court CR. APP (SJ) No.1127 o f 2017 9

instituted, identified the accused. During cross-examination at Para-2,

he had stated that he happens to be brother-in-law (Bahnoi) of the

victim. He had further stated that at the time of commission of rape,

he was near about the place of occurrence. At the time of rape, victim

had not raised alarm. After the occurrence, she shouted, whereupon he

along with Santosh Sah, Jai Narayan, Ashok Sah, aunt of the victim

rushed, came and inquired and during course thereof, victim had

disclosed regarding the occurrence. Then thereafter, case has been

instituted. In Para-4, he had stated that at the time of marpit, he was

not present.

15. PW-2 had stated that on the pretext of false promise

of marriage having at the end of accused Subodh Kumar, he continued

with committing rape over the victim as a result of which, she became

pregnant. Subodh Kumar had not married, whereupon Panchayati was

convened. In Panchayati, it was resolved that accused will have to

marry with the victim at Shyama Temple and for that, date was fixed

on which date, they have gone to Shyama Temple, but neither accused

nor his family members came as a result of which, they returned back.

When they gone to the place of accused, he along with his family

members brutally assaulted them. Parents of the victim died out of

shock. Panchnama was prepared, identified the same. Also identified

his signature over statement recorded under Section 164 of the Cr.P.C.
Patna High Court CR. APP (SJ) No.1127 o f 2017 10

During cross-examination at Para-2, he had admitted the victim to be

his niece. In Para-3, he had stated that he had not seen the occurrence

and then said, how it could be. He had deposed on the basis of

disclosure made by the victim. In Para-5, he had stated that

Panchayati was convened on 31.10.2013, wherein he participated, but

he is unable to disclose the names of others.

16. PW-3 had deposed that victim happens to be her

niece. Advancing false promise of marriage, accused committed sin

with the victim as a result of which, she became pregnant. While she

was carrying pregnancy of eight months, there was Panchayati in

which, accused became ready to marry, but failed to marry. The

family members of the accused persons were also not inclined over

marriage. Then thereafter, this case has been instituted. During cross-

examination at Para-4, she had stated that seeing belly bump, her

mother died and then, it was known to her that victim is pregnant.

Before that, she was not knowing regarding the same. She had further

stated that victim had not been with physical relationship with any

other. She had further stated that seeing the belly bump, she was

assaulted and then, she disclosed regarding the occurrence. In Para-10,

she had stated that no D.N.A. Test was conducted. Child died after the

birth. Then had said that she had not seen the occurrence. Then had

denied the suggestion that victim is a characterless lady having
Patna High Court CR. APP (SJ) No.1127 o f 2017 11

physical relationship with so many persons as a result of which, she

became pregnant. Accused never indulged in physical relationship

with her. Because of the fact that he happens to be a local resident on

account thereof, he has been made a scapegoat.

17. PW-4, during course of examination-in-chief, had

reiterated the same version. Furthermore, identified his signature over

the panchnama. During cross-examination at Para-2, he had stated that

his mother’s name is Kaushalya Devi, who happens to be cousin Fua

of the victim. In Para-3, he had stated that he had not seen the

occurrence. In Para-5, he had said that he is not aware with the fact

that with whom victim was affectionate. In Para-6, he had stated that

the victim and her family members were inclined to marry with the

accused and as no marriage was facilitated on account thereof, this

case has been instituted.

18. PW-6 had deposed in similar manner and had

further stated that victim happens to be her niece. During cross-

examination, she had stated that she had not seen the occurrence. In

Para-4, she had stated that she is not remembering when child had

begotten and when she died.

19. PW-7 had stated that about four and half years ago,

she came to know that Subodh Kumar had committed sin with the

victim as a result of which, she became pregnant and in the aforesaid
Patna High Court CR. APP (SJ) No.1127 o f 2017 12

background, both the parties indulged in marpit.

20. PW-5 is the victim herself. She had stated that about

three and half years ago while her parents were not present at the

house, Subodh Kumar came and asked for water and during course

thereof, he committed rape after intruding inside the house. Then had

asserted that he will marry with her after marriage of his sister. They

had gone to Shyama Temple for marriage, but his parents had not

allowed. Subodh Kumar was inclined, but his parents were not. She

begotten a daughter child at D.M.C.H. Subodh Kumar declined to

keep her. Later on, the girl died. Then she came to Court, filed case.

Her parents died out of shock and anguish. There was Panchayati.

Accused persons have not obeyed the order of the Panch, identified

the accused. During cross-examination at Para-2, she had stated that

they both were known since before the occurrence. In Para-3, she had

stated that they have developed physical relationship during course of

making love. She was not in love with anybody else. The

Superintendent of Police had directed for D.N.A. Test, but it was

never conducted. She had further stated that at the time of institution

of the case, she was aged about 20 years.

21. PW-8 is the I.O., who had deposed that after getting

order from the learned Court, case was instituted. Then thereafter,

investigation was entrusted to him by the Officer-in-Charge (exhibited
Patna High Court CR. APP (SJ) No.1127 o f 2017 13

all the relevant documents). Copied the written report, medical report,

prescription issued by Dr. Nutan Raj. Recorded statement of

witnesses, inspected the place of occurrence, which happens to be the

house of Biltu Sah, father of the victim (detailed the same) recorded

statement of the witnesses. Witnesses have produced copy of the

panchnama. He had not cared to get the victim medically examined.

However, had not recorded statement of the persons of the

surroundings. Then had stated that statement of the witnesses, victim

was video graphed and produced the C.D., got the witnesses examined

under Section 164 of the Cr.P.C. and after completing the

investigation, he had submitted chargesheet. During course of cross-

examination, he had admitted that during course of investigation, he

came to know that the matter relates with love affair. He had not

conducted the D.N.A. Test.

22. PW-9 is the Magistrate, who had recorded statement

of the witnesses under Section 164 Cr.P.C. and had exhibited the

same.

23. After going through the evidences available on the

record as disclosed hereinabove, it is evident that save and except

victim herself, none happens to be an eye witness to occurrence,

which ought not to be. Furthermore, it is evident from the evidence of

PW-5, victim herself that she was aged about 20 years at the time of
Patna High Court CR. APP (SJ) No.1127 o f 2017 14

occurrence. It is also evident from her evidence that she was

continuing with the love affair with the accused much prior to the date

of occurrence and further, under Para-3 of her cross-examination, she

had stated that while they were full of amorousness developed

physical relationship. However, from the mode of cross-examination,

it is evident that none of the PWs including the victim herself was

suggested that it was conscious act. Though, it was suggested to other

PWs, but the accused during course of cross-examination of the

victim, had not controverted the allegation, nor suggested that she was

in contact with somebody else as a result of which, she became

pregnant. She was never suggested that no rape was committed at the

end of accused rather they indulged in physical intimacy out of their

free will, without having deceptively influenced, knowing full-well its

repercussion.

24. Now, the question arose why an unmarried girl will

levelled such kind of allegation, unless and until confronted with such

situation. After all, it happens to be humiliating statement against her

honour as well as family. That happens to be reason behind,

whereunder it has been settled at rest that unless and until, there

happens to be cogent reason to disbelieve the statement of prosecutrix.

Ordinarily, it should not be rejected.

25. From the format of charge, it is apparent that a charge
Patna High Court CR. APP (SJ) No.1127 o f 2017 15

under Section 376 I.P.C. has been framed for an occurrence of rape

committed from 15.02.2013 to 30.10.2013 and in likewise manner,

the incriminating material having been adduced on behalf of

prosecution was confronted to him, including, specifically confronting

committing of rape on 15.03.2013, while recording statement under

Section 313 Cr.P.C., which the accused denied.

26. In Deepak Gulati v. State of Haryana reported in

AIR 2013 SC 2071, it has been held:-

“16. This Court considered the issue involved herein at

length in the case of Uday v. State of Karnataka, AIR 2003

SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar,

AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P.,

(2006) 11 SCC 615; and Pradeep Kumar Verma v. State of

Bihar Anr., AIR 2007 SC 3059, and came to the

conclusion that in the event that the accused’s promise is

not false and has not been made with the sole intention to

seduce the prosecutrix to indulge in sexual acts, such an

act(s) would not amount to rape. Thus, the same would

only hold that where the prosecutrix, under a

misconception of fact to the extent that the accused is likely

to marry her, submits to the lust of the accused, such a

fraudulent act cannot be said to be consensual, so far as

the offence of the accused is concerned.

17. Rape is the most morally and physically reprehensible
Patna High Court CR. APP (SJ) No.1127 o f 2017 16

crime in a society, as it is an assault on the body, mind and

privacy of the victim. While a murderer destroys the

physical frame of the victim, a rapist degrades and defiles

the soul of a helpless female. Rape reduces a woman to an

animal, as it shakes the very core of her life. By no means

can a rape victim be called an accomplice. Rape leaves a

permanent scar on the life of the victim, and therefore a

rape victim is placed on a higher pedestal than an injured

witness. Rape is a crime against the entire society and

violates the human rights of the victim. Being the most

hated crime, rape tantamounts to a serious blow to the

supreme honour of a woman, and offends both, her esteem

and dignity. It causes psychological and physical harm to

the victim, leaving upon her indelible marks.

18. Consent may be express or implied, coerced or

misguided, obtained willingly or through deceit. Consent is

an act of reason, accompanied by deliberation, the mind

weighing, as in a balance, the good and evil on each side.

There is a clear distinction between rape and consensual

sex and in a case like this, the court must very carefully

examine whether the accused had actually wanted to marry

the victim, or had mala fide motives, and had made a false

promise to this effect only to satisfy his lust, as the latter

falls within the ambit of cheating or deception. There is a

distinction between the mere breach of a promise, and not

fulfilling a false promise. Thus, the court must examine
Patna High Court CR. APP (SJ) No.1127 o f 2017 17

whether there was made, at an early stage a false promise

of marriage by the accused; and whether the consent

involved was given after wholly, understanding the nature

and consequences of sexual indulgence. There may be a

case where the prosecutrix agrees to have sexual

intercourse on account of her love and passion for the

accused, and not solely on account of mis-representation

made to her by the accused, or where an accused on

account of circumstances which he could not have

foreseen, or which were beyond his control, was unable to

marry her, despite having every intention to do so. Such

cases must be treated differently. An accused can be

convicted for rape only if the court reaches a conclusion

that the intention of the accused was mala fide, and that he

had clandestine motives.

19. In Deelip Singh (supra), it has been observed as under:

“20. The factors set out in the first part of Section 90 are

from the point of view of the victim. The second part of

Section 90 enacts the corresponding provision from the

point of view of the accused. It envisages that the accused

too has knowledge or has reason to believe that the consent

was given by the victim in consequence of fear of injury or

misconception of fact. Thus, the second part lays emphasis

on the knowledge or reasonable belief of the person who

obtains the tainted consent. The requirements of both the

parts should be cumulatively satisfied. In other words, the
Patna High Court CR. APP (SJ) No.1127 o f 2017 18

court has to see whether the person giving the consent had

given it under fear of injury or misconception of fact and

the court should also be satisfied that the person doing the

act i.e. the alleged offender, is conscious of the fact or

should have reason to think that but for the fear or

misconception, the consent would not have been given. This

is the scheme of Section 90 which is couched in negative

terminology.”

20. This Court, while deciding Pradeep Kumar Verma

(Supra), placed reliance upon the judgment of the Madras

High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad

453, wherein it has been observed:

“We are of opinion that the expression “under a

misconception of fact” is broad enough to include all cases

where the consent is obtained by misrepresentation; the

misrepresentation should be regarded as leading to a

misconception of the facts with reference to which the

consent is given. In Section 3 of the Evidence Act

Illustration (d) states that a person has a certain intention

is treated as a fact. So, here the fact about which the

second and third prosecution witnesses were made to

entertain a misconception was the fact that the second

accused intended to get the girl married…….. “thus … if

the consent of the person from whose possession the girl is

taken is obtained by fraud, the taking is deemed to be

against the will of such a person”. … Although in cases of
Patna High Court CR. APP (SJ) No.1127 o f 2017 19

contracts a consent obtained by coercion or fraud is only

voidable by the party affected by it, the effect of Section 90

IPC is that such consent cannot, under the criminal law, be

availed of to justify what would otherwise be an offence.”

21. Hence, it is evident that there must be adequate

evidence to show that at the relevant time, i.e. at initial

stage itself, the accused had no intention whatsoever, of

keeping his promise to marry the victim. There may, of

course, be circumstances, when a person having the best of

intentions is unable to marry the victim owing to various

unavoidable circumstances. The “failure to keep a promise

made with respect to a future uncertain date, due to

reasons that are not very clear from the evidence available,

does not always amount to misconception of fact. In order

to come within the meaning of the term misconception of

fact, the fact must have an immediate relevance.” Section

90 IPC cannot be called into aid in such a situation, to

pardon the act of a girl in entirety, and fasten criminal

liability on the other, unless the court is assured of the fact

that from the very beginning, the accused had never really

intended to marry her.”

27. Non-cross-examination of prosecutrix on relevant

point much less on rape, as well as with regard to conduct of accused

during course of cross-examination as well as during course of

statement recorded under Section 313 Cr.P.C. has been taken in
Patna High Court CR. APP (SJ) No.1127 o f 2017 20

consideration by the Apex Court in Ganga Singh vs. State of M.P.

reported in A.I.R. 2013 SCW 3008, it has been held:-

“11. According to Mr. Mehrotra, however, PW-5 is not a

reliable witness as she has made a significant omission in

her evidence by not stating anything about the seizure of

the blouse, dhoti and broken bangles which were made in

her presence. But we find that no question has been put to

PW-5 in cross-examination with regard to seizure of the

blouse, dhoti and broken bangles in her presence. If the

appellant’s case was that PW-5 cannot be believed because

she made this significant omission in her evidence, a

question in this regard should have been put to her during

her cross- examination. To quote Lord Herschell, LC in

Browne vs. Dunn [(1894) 6 R 67]:

“……it seems to me to be absolutely essential to the proper

conduct of a cause, where it is intended to suggest that a

witness is not speaking the truth on a particular point, to

direct his attention to the fact by some questions put in

cross examination showing that the imputation is intended

to be made, and not to take his evidence and pass it by as a

matter altogether unchallenged, and then, when it is

impossible for him to explain, as perhaps he might have

been able to do if such questions had been put to him, the

circumstances which it is suggested indicate that the story

he tells ought not to be believed, to argue that he is a
Patna High Court CR. APP (SJ) No.1127 o f 2017 21

witness unworthy of credit.” Section 146 of the Indian

Evidence Act also provides that when a witness is cross-

examined, he may be asked any question which tend to test

his veracity. Yet no question was put to PW-5 in cross-

examination on the articles seized in her presence. In the

absence of any question with regard to the seizure of the

blouse, dhoti and broken bangles in presence of PW-5,

omission of this fact from her evidence is no ground to

doubt the veracity of her evidence.

………………………………………………………………………………..

14. We further find that the appellant has not taken a

defence in his statement under Section 313 of the Criminal

Procedure Code that the sexual intercourse was with the

consent of PW-5. Instead, he has denied having had any

sexual intercourse with PW-5 and has taken a stand that he

has been falsely implicated on account of a quarrel

between him and the husband of PW-5. Yet, the trial court

held that there was proof of sexual intercourse between the

appellant and PW-5, but the sexual intercourse was with

the consent of PW-5. We are of the considered opinion that

as the appellant had not taken any defence of consent of

PW-5, the trial court was not correct in recording the

finding that there was consent of PW-5 to the sexual

intercourse committed by the appellant and should have

instead considered the defence of the appellant that he had

been falsely implicated because of a quarrel between him
Patna High Court CR. APP (SJ) No.1127 o f 2017 22

and the husband of PW-5. We have, however, considered

this defence of the appellant but find that except making a

suggestion to PW-2, the appellant has not produced any

evidence in support of this defence. As PW-2 has denied the

suggestion, we cannot accept the defence of the appellant

that he was falsely implicated on account of a quarrel

between the appellant and the husband of PW-5.

28. Had there been genuine conduct of the appellant/

accused, he would have offered a plausible explanation, much less,

over his promise was not soaked with deceitful intention, and further,

would have taken a positive defence by advancing such plea.

Blatantly referring the circumstances, it speaks a lot and further,

exposes his dubious character. Even having exposed at the end of

prosecutrix, PW-5, Para-2 and 3 of her cross-examination coupled

with her examination-in-chief.

29. So far delay is concerned, from the narration, it is

apparent that it happens to be a continuing offence. Apart from this,

the matter has been dealt with elaborately in State of Himachal

Pradesh vs. Sanjay Kumar @ Sunny reported in 2017 CRI.L.J.

1443, it has been held:-

“24. When the matter is examined in the aforesaid

perspective, which in the opinion of this Court is the right

perspective, reluctance on the part of the prosecutrix in not
Patna High Court CR. APP (SJ) No.1127 o f 2017 23

narrating the incident to anybody for a period of three

years and not sharing the same event with her mother, is

clearly understandable. We would like to extract the

following passage from the judgment of this Court in

Tulshidas Kanolkar v. State of Goa[(2003) 8 SCC 590]:

“5. We shall first deal with the question of delay.

The unusual circumstances satisfactorily explained the

delay in lodging of the first information report. In any

event, delay per se is not a mitigating circumstance for the

accused when accusations of rape are involved. Delay in

lodging the first information report cannot be used as a

ritualistic formula for discarding the prosecution case and

doubting its authenticity. It only puts the court on guard to

search for and consider if any explanation has been offered

for the delay. Once it is offered, the court is to only see

whether it is satisfactory or not. In case if the prosecution

fails to satisfactorily explain the delay and there is

possibility of embellishment or exaggeration in the

prosecution version on account of such delay, it is a

relevant factor. On the other hand, satisfactory explanation

of the delay is weighty enough to reject the plea of false

implication or vulnerability of the prosecution case. As the

factual scenario shows, the victim was totally unaware of

the catastrophe which had befallen her. That being so, the

mere delay in lodging of the first information report does

not in any way render the prosecution version brittle.”
Patna High Court CR. APP (SJ) No.1127 o f 2017 24

25. In Karnel Singh v. State of Madhya Pradesh[(1995) 5

SCC 518], this Court observed that:

“7…The submission overlooks the fact that in India

women are slow and hesitant to complain of such assaults

and if the prosecutrix happens to be a married person she

will not do anything without informing her husband.

Merely because the complaint was lodged less than

promptly does not raise the inference that the complaint

was false. The reluctance to go to the police is because of

society’s attitude towards such women; it casts doubt and

shame upon her rather than comfort and sympathise with

her. Therefore, delay in lodging complaints in such cases

does not necessarily indicate that her version is false…”

26. Likewise, in State of Punjab v. Gurmit Singh

Ors.[(1996)2 SCC 384], it was observed:

“8…The courts cannot overlook the fact that in

sexual offences delay in the lodging of the FIR can be due

to variety of reasons particularly the reluctance of the

prosecutrix or her family members to go to the police and

complain about the incident which concerns the reputation

of the prosecutrix and the honour of her family. It is only

after giving it a cool thought that a complaint of sexual

offence is generally lodged.”

30. After close and thoughtful evaluation of the

evidences adduced on behalf of prosecution in consonance with the
Patna High Court CR. APP (SJ) No.1127 o f 2017 25

conduct of the appellant, did not pursue any kind of interference with

the judgment impugned. Consequent thereupon, is affirmed. Appeal is

dismissed. Appellant is under custody, which he shall remain till the

saturation of the sentence.

31. Looking at the pitiable condition of the victim, who

has become orphan as her parents did not bear the shock and died, on

account thereof, concerned D.L.S.A. is directed to have the victim

properly cared by way of providing adequate compensation under

victim compensation scheme on proper identification. A copy of

judgment be served upon the D.L.S.A., Darbhanga for proper

compliance and report.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE 09.05.2018
Uploading Date 28.06.2018
Transmission 28.06.2018
Date

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