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 16crime 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 17whether 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 18court 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 19contracts 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 21witness 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 22and 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 23narrating 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
