Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.167 of 2015
Arising out of P. S. Case No. -1163 Year- 2001 Thana -PURNIA COM PLAINT CASE District-
PURNIA
Ubed, son of Latifur Rahman, resident of Village- Bijwar, P.S.- Angarh, District –
Purnea.
…. …. Appellant/s
Versus
1. The State of Bihar
2. Nazmin, D/o Yusuf, R/o Vill- Bijwar, P.S.- Angarh, District- Purnea.
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Ram Prawesh Kumar-Advocate
For the Respondent/s : Mr. Z. Hoda-A.P.P.
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 08-10-2018
Appellant Ubed 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.20,000/-
and in default thereof, to undergo R.I. for two years, additionally,
under Section 313/511 of the I.P.C. and sentenced to undergo R.I. for
five years as well as to pay fine appertaining to Rs.10,000/- and in
default thereof, to R.I. for one year, additionally, with a further
direction to run the sentences concurrently vide judgment of
conviction dated 03.03.2015 and order of sentence dated 04.03.2015
passed by the 2nd Additional Sessions Judge, Purnia in Sessions Trial
No.242 of 2004/ 852 of 2014.
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 2
2. Name withheld (PW-6), victim filed Complaint
Petition No.1163 of 2001 on 03.11.2001 disclosing the date of
occurrence from the last six months to one week prior to the filing of
the complaint, showing the place of occurrence to field of the
complainant along with her house and further, divulging the
prosecution case as she happens to be minor aged about 15 years.
About 5-6 months ago at about 4.00 P.M. while she had gone to her
field to pluck jute leaves for vegetable, Ubed (appellant) caught hold
her, dragged her inside the field and committed rape. At that very
moment, he was armed with knife and had threatened of dire
consequences, in case she is going to divulge to the extent of
murdering her. Being minor, she became afraid of the threatening
having at the end of the accused, whereupon she could not disclose.
About a week thereafter, while she had gone to same field for
plucking jute leaves, accused Ubed, all of a sudden, arrived and again
on the pretext of knife, committed rape. Subsequently thereof, he had
also committed rape as a result of which, she became pregnant. Her
mother, seeing some abnormal symptoms, enquired, whereupon she
narrated the incident of rape. Her parents were in a way to police
station, were prevented by the villagers on the pretext of getting the
matter resolved at the village level itself and for that, Panchayati was
convened wherein there was admission at their end and then, the
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 3
Panchayat resolved that accused should marry with her, but they have
not obeyed the dictum of the Panches. On the other hand, all the
accused, so named, came with a medicine and tried to administer the
same forcibly, which she spat. The witnesses along with neighbours
intervened and got her rescued. It has also been disclosed that accused
persons are influential person of the locality having their direct
connection with the police officials and that being so, complaint is
being filed.
3. On the basis of the aforesaid complaint, complainant
was examined on S.A., other witnesses were also examined during
course of an inquiry as provided under Section 202 of the Cr.P.C.
Complainant was also examined by the doctor as directed, who had
found her to be pregnant and then, took cognizance of an offence
punishable under Section 376 as well as 313/ 511 of the I.P.C. solely
against the appellant, which happens to be the basis of trial, meeting
with the ultimate result, subject matter of instant appeal.
4. The 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 of the occurrence. It has also been
pleaded that the victim has developed intimacy with Jahrul Haque,
Dewar of her sister Umeda and out of such intimacy, she became
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 4
pregnant. There was rumour in the village, whereupon father of the
appellant along with other respectable persons of the village rebuked
the father of the victim and directed him to get the victim married
with Jahrul Haque, otherwise they will be ousted from the village. As
Jahrul refused to marry and got himself married at other place,
whereupon in revengeful activity, this case has been filed by the father
of the victim projecting the victim with false and frivolous allegation.
In order to substantiate the same, DWs have also been examined.
5. In order to substantiate this case, prosecution had
examined altogether seven PWs, who are PW-1, Md. Abdul Kalam,
PW-2, Asma, PW-3, Md. Yunus, PW-4, Hakimuddin, PW-5,
Salimuddin, PW-6, victim and PW-7, Dr. Lata Madhav. Side by side,
had also exhibited, Exhibit-1, medical report. On the other hand, three
DWs have also been examined on behalf of appellant, who are DW-1,
Md. Suleman, DW-2, Latifur Rahman, the father of the appellant and
DW-3, Md. Junaid Alam. No documentary evidence has been
adduced at the end of the defence.
6. While challenging the finding recorded by the learned
lower Court, it has been pleaded by the learned counsel for the
appellant that same happens to be perverse, cryptic, whereupon it fit
to be set aside. To substantiate the same, the learned counsel for the
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 5
appellant raised manifold arguments. The first and foremost happens
to be that there happens to be inordinate delay in instituting of the
complaint. There happens to be no cogent explanation at the end of
the prosecution and that being so, on the sole ground of delay, the
prosecution case is fit to be brushed aside. Then, it has been submitted
that being a cognizable offence, the matter would have been reported
to the police. It is not under controversy that complaint petition cannot
be filed, but police happens to be competent enough to see the place
of occurrence, got the witnesses examined, got the other material
collected, which could have been relevant for the purpose of
adjudicating upon the trial. The non-filing of the case before the
police, is a circumstance, which cast doubt over the authenticity of the
prosecution case. Then, it has been submitted that now, coming to
status of the witnesses, all others, save and except PW-6, are hearsay,
because of the fact that whatever they deposed, on the basis of
disclosure having at the end of the victim. When the evidence of
victim is taken, it also speaks a lot over veracity of her evidence. To
substantiate the same, it has been submitted that once the victim was
raped in a jute field, then what was occasion for her to re-visit the said
field that too, after a short interval, which could have probably been
refused at her end or would have divulged at least to her mother that
because of such misfortune, she was not adamant or ready to go to the
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 6
said jute field. Even accepting for a moment, that prosecution case
happens to be true, then in that circumstance, the conduct of the
victim suggest that she was a consenting party otherwise there was no
occasion for her to go to the jute field. It has further been submitted
that doctor (PW-7), during course of examination of the victim, had
not ascertained her age. In the complaint petition, there happens to be
disclosure at the end of the victim that she was aged about 15 years,
but surprisingly, she kept mum over her status to be minor or major or
in the aforesaid background as well as in the background of the fact
that Court had estimated her age to be 22 years as is evident from
deposition form, the victim was major on the alleged date and time of
occurrence and was a consenting party. So, no offence would be
found duly substantiated and that being so, neither the offence under
Section 376 of the I.P.C. made out nor under Section 313 of the I.P.C.
due to paucity of evidence on that score. That being so, the judgment
of conviction and sentence recorded by the learned lower Court
suffers from conjectures and surmises and is fit to be set aside.
7. On the other hand, learned Additional Public
Prosecutor while controverting the submission made on behalf of
learned counsel for the appellant has submitted that victim has not
been cross-examined over the occurrence. That being so, mere
suggesting that the victim without cross-examining her, developed
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 7
intimacy with Jahrul and whatever outcome, she had alleged, is on
account of physical relationship having been developed in between
her as well as Jahrul. That being so, whatever allegation has been
attributed at the end of the victim remained unchallenged. So far
suggestion is concerned, less said is better. Three DWs have been
examined. DW-3 had stated that he along with DW-2, father of the
appellant had rebuked the father of the victim over the activity of the
victim, but there happens to be no explanation or nothing has been
said at their end, why this case has been filed only against the
appellant and not against DW-3 or his family members. Apart from
this, there also happens to be absence of positive evidence as well as
disclosure at the end of the DWs that they have ever seen the victim in
company of Jahrul. They have only disclosed that they heard rumour
and in likewise manner, is the suggestion having at the end of the
appellant. It has not been disclosed that Umeda, sister of the victim,
was married in the village itself having frequent access. So, unless and
until, there happens to be possibility of presence of Jahrul at the place
of victim or the victim was found in the company of Jahrul, the
suggestion or the examination of the DWs on that very score, will
serve no purpose. Consequent thereupon, the judgment of conviction
and sentence recorded by the learned lower Court happens to be just,
proper, legal and is fit to be confirmed.
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 8
8. Before coming to analyze the evidences available on
the record, adduced on behalf of respective parties, it is manifest that
by way of suggestion, there happens to be an admission at the end of
the appellant that victim was pregnant, but with an explanation that
was on account of physical intimacy with Jahrul, Dewar of her sister
namely Umeda. That means to say, pregnancy of the victim has gone
out of controversy and for that, two versions are there, the one version
at the end of the prosecution to be an outcome as a result of rape
having committed by the appellant while according to defence, she
carried pregnancy on account of physical intimacy in between Jahrul
and the victim. So, victim having been ravished or being a consensual,
irrespective thereof, is found admitted in the background of pregnancy
of the victim. The aforesaid theme is also found duly substantiated at
the end of doctor (PW-7), who had found victim carrying pregnancy
of 20 weeks on the date of her examination i.e. on 13.11.2001. Now,
coming to oral evidence, it is apparent that witnesses like PW-1, PW-
2, PW-3, PW-4 and PW-5, whatever been stated at their end with
regard to commission of rape over the person of victim (PW-6), is
based upon the disclosure having made by the victim herself on a
query made by PW-2, her mother after perceiving her with abnormal
symptoms.
9. It is further evident from her evidence that for that,
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 9
there was Panchayati, wherein it was resolved to marry, which has
been declined. Furthermore, after Panchayati, the accused persons
indulged in criminal activity after coming to the house of the victim
whereunder they unsuccessfully tried to administer medicine to
facilitate abortion, but on account of spiting thereof, by the victim,
could not swallow. It is also evident that during course of trial, she
begotten a child, who died. Be that as it may, aforesaid theme is out of
controversy, has never been challenged at the end of the appellant. So
far Panchayati is concerned, it may be a surrounding circumstance,
however, PW-1 in Para-5 has not been cross-examined, at whose
place, Panchayati was convened, though he had substantiated the
same. PW-2 at Para-8, 9 has been cross-examined and during course
thereof, she had stated that she was not present in the Panchayati, but
had divulged the resolution taken in the Panchayati. PW-3, during
cross-examination at Para-6, Para-7, Para-8, was cross-examined over
the Panchayati wherein he detailed and further, identified the place of
Suleman where Panchayati was convened. PW-5 had stated during his
examination-in-chief, that he came to know about the occurrence
during course of Panchyati and on that very score, from Para-3 of his
cross-examination, it is evident that he reiterated the same. PW-6, the
victim, during course of her examination-in-chief at Para-4, had
detailed the event of Panchayati and she has been tested under Paras-
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 10
17, 18 of her cross-examination wherein she had stated that
Panchayati was convened at the house of Suleman.
10. Now, coming to the main occurrence, PW-6, during
course of her examination-in-chief, had stated that on the alleged date
and time of occurrence, when she had gone to her own jute field in
order to pluck it leaves, accused arrived, caught hold her, thrust scarf
in her mouth, opened the Salwar and then, committed rape. He had
shown knife and said that in case of raising of alarm, she will be
murdered. She became afraid of, whereupon could not dare to disclose
the event. After 3-4 days thereafter, she had again gone to the
aforesaid jute field and during course thereof, the accused pounced
upon her, dragged her and then, committed rape. At that very moment,
also he sustained over her on the pretext of knife with a threatening
that in case of disclosure at her end, she will be murdered. Then had
disclosed that at one another occasion also, she fallen under grip of
accused, who again committed rape on the pretext of knife as a result
of which, she became pregnant. Seeing her abnormal appearance, her
mother inquired, whereupon she disclosed the occurrence. Then
thereafter, her mother disclosed the same to her father and then, both
of them proceeded to police station carrying her, but were forbidden
by the villagers on the score of matter to be resolved in the village
itself and for that, Panchayati was convened wherein there was
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 11
admission at the end of accused and further, an undertaking of
marriage, which later on declined. Subsequently thereof, the accused
persons, so named, came with medicine and tried to forcibly
administer, which she spat. It has further been disclosed that then
thereafter, they came to Court, got the complaint scribed and then,
filed. Also submitted that during course of trial, she begotten a child,
who subsequently died, identified the accused.
11. During cross-examination at Para-7, she had stated
that first incident of rape was committed four months prior to the date
of filing of the complaint petition. The first occurrence is of the month
of ‘Ashadh’. At that very time, it was 5.00 P.M. At Para-8, the present
location of the land has been tested. In Para-9, she had disclosed that
she is unable to disclose the boundary of the P.O. At that very time,
the jute plant attained seven hands height. At that very time, none was
present in surrounding. As soon as, she reached at the jute field,
accused Ubed caught hold her and then, pulled her inside the jute
field. During course thereof, she had fallen down even then, was
dragged. She had not sustained any injury over her thigh, but she had
sustained injury over her buttock. However, she had not examined
herself by a doctor with regard to the aforesaid injury. In Para-10, she
had stated that after dragging inside the jute field, first of all, he
shown knife and threatened in case of raising of alarm, she will be
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 12
murdered, whereupon she became stunt and then, he broken string and
then, committed rape. During course thereof, the accused continued to
threaten her with the knife. She had further stated that accused had not
come to her place nor had threatened her after coming to her place. In
Para-11, she had disclosed that while she was carrying pregnancy of
four months, her physical feature was perceived by her mother,
whereupon she inquired. On query, she disclosed about the
occurrence. Panchayati was convened after 4-5 days thereafter and the
case has been instituted 10-12 days after the Panchayati. At Para-12,
she had stated that second incident had occurred after 4-5 days of the
first incident in the same field. She had denied the suggestion that in
her statement before the Chief Judicial Magistrate, she had disclosed
that 8-10 days after the first incident, 2nd incident took place. She had
further stated that while she had gone to the field in order to pluck the
leaves of jute, she was raped on the pretext of Chhura. In Para-13, she
had stated that at the time of first incident of rape, she had protested.
She had raised alarm. At Para-14, she had stated that she is exactly not
remembering how much time from today, Panchayati was convened
and in likewise manner, the time when accused persons came to
adminster medicine. She had further stated that at the time of first
incident, Ubed had caught hold her both hands, pressed her leg by his
own leg and then, committed rape. At that very time, he was armed
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 13
with knife having in one hand. In Para-16, she had also stated that at
the time of second incident also, she was threatened of dire
consequences. In Paras-17, 18, there happens to be cross-examination
with regard to Panchayati wherein she had stated that Panchayati was
convened at the darwaza of Suleman wherein he along with her father,
brother and members of the society were present, Ubed was also
present in Panchayati. His father was absent. Ubed had admitted to
marry. Then had stated that she had not spoken before the Chief
Judicial Magistrate that Ubed declined to marry. In Para-19, she had
stated that she was raped thrice by Ubed. She had denied to have
stated that she slept with Ubed four times. Then had stated that he
forcibly called her. In Para-21, he had stated that she had begotten a
dead child at her house. She had not obtained certificate regarding the
same. She was medically examined on an order of the Court. The
child begotten after four months from the date of her S.A. In Para-22,
she admitted Jahrul Haque to be Dewar of her sister Umeda. Then had
denied the suggestion that she had developed illicit relationship with
him about 5-6 months prior to the institution of the case as a result of
which, she became pregnant. After coming to know about the same,
the other co-villagers including father of Ubed rebuked and further,
directed her father to marry her with Jahrul, otherwise will be ousted
from the village. As Jahrul declined to marry, whereupon this case has
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 14
been instituted levelling false and frivolous allegation.
12. PW-2 is the mother, who had deposed that victim is
her daughter. On query, she disclosed about 3 ½ years ago that on the
pretext of knife, Ubed had committed rape upon her and further,
threatened that in case of divulgence, she will be murdered. She had
also disclosed that Ubed had raped her thrice as a result of which, she
became pregnant. Panchayati was convened, but on account of
absence of Ubed, had gone frustrated. Thereafter, Ubed, Samad,
Latifur forcibly administered medicine to the victim in order to abort.
This case lastly been instituted. Her daughter had begotten a dead
child. During cross-examination, she had stated that at Para-5 that at
the time of disclosure at the end of victim, she was pregnant of three
months. After three months, Panchayati was convened. At Para-6, she
had stated that at the time of her statement before the Magistrate,
victim was carrying pregnancy of eight months. In Para-7, she had
stated that after third incident of rape, she had disclosed commission
of rape on her on query. At that very time, she was carrying
pregnancy of three months. In Para-8, she had stated that Panchayati
was convened three months after the last incident of rape. She had not
participated. She is not knowing, who had participated during course
of Panchayati. The accused persons came ten days after the
Panchayati to administer medicine. In Para-10, she had stated that
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 15
victim begotten a child four months after the institution of the case. At
Para-12, she admitted Jahrul to be son of her Samdhi. Then had
denied the suggestion that victim had developed illicit relationship
with Jahrul about six months prior to the institution of case,
whereupon villagers came to know whereupon, father of Ubed and
other co-villagers scolded and further, directed to marry the victim
with Jahrul Haque, otherwise they will be ousted from the village.
Jahrul declined to marry, so this case has purposely been instituted
against Ubed.
13. PW-3 is the father. During his examination-in-chief,
he had stated that on the disclosure made by his daughter to his wife.
He also made query, whereupon she disclosed that on account of
commission of rape by Ubed, she has become pregnant. She had also
disclosed that she was raped when she had gone to pluck jute leaves
from her own field. Panchayati was convened wherein all the accused
persons have threatened, as such, had gone frustrated. Then thereafter,
Ubed, Samad, Latifur came at his place, administered medicine to
victim, but his daughter spat the same. Later on, his daughter begotten
a dead child. Identified the accused. During cross-examination at
Para-3, he had stated that during course of statement before the
Magistrate, he had stated that when his daughter had gone to pluck
jute leaf, she was raped by the appellant. In Para-4, he had stated that
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 16
he had not seen the occurrence. He came to know on the disclosure
made by the victim on query based on an information given by his
wife regarding the occurrence. Then, there happens to be disclosure
with regard to Panchayati at Paras-5, 6, 7, 8 and 9. In Para-10, he had
stated that he had not gone to the police station. Why not he had gone
to police station, he is unable to explain. Then had stated that he came
to Court after four months of Panchayati. He is unable to disclose the
reason behind it. Then had denied the suggestion that his daughter had
developed illicit relationship with Jahrul Haque, whereupon father of
Ubed and others scolded him and further, directed to get the victim
married with Jahrul, otherwise will be ousted from the village.
Because of the fact that he became annoyed with the activity of the
father of Ubed, on account thereof, he got this case filed.
14. PW-1 is the brother. During course of his
examination-in-chief, he reiterated the prosecution version. He had
also stated that with regard to convening of Panchayati. He had
further stated that after institution of the case, statement of the victim,
she had begotten a dead child. During cross-examination, at Paras-2,
3, there happens to be contradiction. In Para-4, had stated that he is
not an eye witness to occurrence. At Para-6, he had stated that he is
not remembering the exact date, time of commission of the rape. He
had further stated that victim was examined by the doctor about four
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 17
months after the occurrence. At Para-8, he had denied the suggestion
that his sister was inclined to marry with Jahrul. He had denied the
suggestion that she had developed illicit relationship with Jahrul
Haque 5-6 months prior to the institution of case, whereupon father of
Ubed had scolded and as Jahrul declined to marry then thereafter, this
case has been instituted putting false and frivolous allegation.
15. PWs-4 and 5 are the co-villagers, who have
corroborated the evidence on hearsay basis. During cross-
examination, they have stated that they have not seen the occurrence.
16. Defence had also examined three DWs. DW-1 is Md.
Suleman. He had stated that he knew informant/ victim as well as
accused Ubed being co-villagers. He had further stated that for
commission of rape by Ubed over the victim, no Panchayati was
convened at his darwaza. He had not come to know that victim was
raped by Ubed. Then had stated that there was rumour in the village
that victim was carrying illicit relationship with Jahrul about 5-6
months prior to the institution of the case for which, villagers as well
as father of Ubed had scolded the father of victim and had further,
directed to get the victim married as early as possible. He had further
stated that father of Ubed was Ex-Sarpanch and so, he had directed
that in case of disobedience of his direction, the prosecution party will
be ousted from the caste. In the aforesaid background, this case has
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 18
been registered out of malice, grudge. This case is false, Ubed is of
good character. Victim is of bad repute. Then had disclosed that
cousin of victim is married with his son. During course of cross-
examination, he had said that he had come to depose at the instance of
accused. He had further stated that he came to know about the rape
after institution of the case.
17. DW-2, is Latifur Rahman, father of the appellant. He
had stated that he was Sarpanch of the Panchayat about 30 years. He
had further stated that the victim has instituted a case against Ubed on
03.11.2001. 5-6 months prior to institution of this case, a rumour
floated in the village that the victim was carrying illicit relationship
with Jahrul, who happens to be Dewar of sister of the victim.
Villagers have directed the father of the victim to get both of them
married, otherwise they will be ousted from the village. Jahrul
declined to marry with the victim, because of the fact that he had
scolded father of the victim, on account thereof, this case has been
instituted falsely against his son. He has got no information with
regard to incident of rape. He had further stated that since 3-4 years
back, the character of the victim is under question mark. During cross-
examination, he had stated that he had not informed anywhere with
regard to illicit relationship in between Jahrul and victim. He had
further stated that he had not intimated anywhere with regard to
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 19
threatening having given by the father of the victim. Then had denied
the suggestion that in order to save his son, he has come forward to
depose falsely. He had denied the suggestion that victim was raped by
his son.
18. DW-3 had stated that he happens to be Mukhiya of
the Panchayat since 2001. Again corrected, Mukhiya is his wife. He
knew the victim as well as Ubed. Then had stated that before
institution of case a rumour floated that the victim was carrying illicit
relationship with Jahrul. He had further stated that father of accused
Ubed is Ex-Sarpanch. He along with Sarpanch had directed the father
of the victim to get her marriage with Jahrul, but Jahrul did not accept
the same, whereupon father of Ubed had scolded him as a result of
which, the victim had instituted this case against Ubed on an order of
her parents. He had further stated that for the 7-8 months prior to the
institution of the case, there was rumour over character of the victim.
He had further stated that he does not know with regard to Panchayati.
He had further stated that character of Ubed is good. There was no
complaint against him. He had further stated that this case happens to
be false to his best of knowledge. During cross-examination, he had
stated that during his tenure, he had not received any sort of complaint
over character of the victim. He had further stated that he was not
knowing presence of any kind of evidence divulging illicit
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 20
relationship in between the victim with Jahrul. Then had stated that
there was no document prepared during course of Panchayati. Then
had denied the suggestion that being old friend of the father of Ubed,
he has falsely deposed.
19. As stated above, the accused had not denied the
victim stressed sexually, pregnancy, but having a counter version that
she carried the same on account of suffering illicit relationship with
Dewar of her sister namely Jahrul. When the aforesaid them is taken
together, it is evident that though prosecution witnesses were
suggested, but during course of examination of DWs that it is evident
that DW-1 had not spoken a single word on that very score. DW-2,
father of the accused, had not shown presence of DW-3 while DW-3
had stated that he had along with father of the accused namely DW-2,
had scolded the father of the victim. In the aforesaid background, why
not DW-3 was also dragged in the proceeding, when he was also
actively involved during course of scolding of the victim is not at all
explained.
20. In the background of admitted fact, there happens to
be nothing adverse to the prosecution case on account of status of the
witnesses, who had not claimed to be an eye witness, rather whatever
they deposed, on the basis of disclosure of the victim on query. So, by
such evidence, they corroborated the evidence of the victim (PW-6).
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 21
21. In Sham Singh v. State of Haryana reported in
A.I.R. 2018 SC 3976, it has been held:-
“6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity. The
courts should examine the broader probabilities of a case
and not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which are
not of a fatal nature, to throw out an otherwise reliable
prosecution case. If the evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If
for some reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which
may lend assurance to her testimony, short of
corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the court must be alive
to its responsibility and be sensitive while dealing with
cases involving sexual molestations or sexual assaults. (see
State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384
(para21)).
7. It is also by now well settled that the courts must, while
evaluating evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come forward in a
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 22
court just to make a humiliating statement against her
honour such as is involved in the commission of rape on
her. In cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in
the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The testimony
of the victim in such cases is vital and unless there are
compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. (see Ranjit Hazarika vs. State of Assam, (1998) 8
SCC 635).
8. It is also relevant to note the following observations of
this Court in the case of Raju vs. State of M.P. (2008) 15
SCC 133, which read thus:
“10. The aforesaid judgments lay down the basic
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 23
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more so as
her statement has to be evaluated on a par with that of an
injured witness and if the evidence is reliable, no
corroboration is necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and we
respectfully agree with them, but at the same time they
cannot be universally and mechanically applied to the facts
of every case of sexual assault which comes before the
court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at the
same time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well.
The accused must also be protected against the possibility
of false implication, particularly where a large number of
accused are involved. It must, further, be borne in mind
that the broad principle is that an injured witness was
present at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any basis
for assuming that the statement of such a witness is always
correct or without any embellishment or exaggeration.”
We have assessed the entire material on record to
satisfy our conscience once again, keeping in mind the
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 24
aforementioned set principles in such matters.
22. In Wahid Khan v. State of Madhya Pradesh reported
in 2010 SC 1, it has been held:-
“21. It is also a matter of common law that in Indian
society any girl or woman would not make such allegations
against a person as she is fully aware of the repercussions
flowing therefrom. If she is found to be false, she would be
looked by the society with contempt throughout her life.
For an unmarried girl, it will be difficult to find a suitable
groom. Therefore, unless an offence has really been
committed, a girl or a woman would be extremely reluctant
even to admit that any such incident had taken place which
is likely to reflect on her chastity. She would also be
conscious of the danger of being ostracized by the society.
It would indeed be difficult for her to survive in Indian
society which is, of course, not as forward looking as the
western countries are.
22. Thus, in a case of rape, testimony of a prosecutrix
stands at par with that of an injured witness. It is really not
necessary to insist for corroboration if the evidence of the
prosecutrix inspires confidence and appears to be
credible”.
23. In the background of principle as referred
hereinabove, now the evidence of the prosecutrix (PW-6) has to be
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 25
seen. It is evident that with regard to 2nd and 3rd incident of
occurrence, the allegation may suggest some abnormal conduct, but as
she was not at all tested how she dared to visit the place repeatedly,
moreover, the first incident of rape is found also not been properly
dealt with a specific cross-examination on that very score, when she
had disclosed the manner of occurrence during cross-examination at
Paras-9, 12, 16.
24. Now, the question remained, there happens to be
inordinate delay in launching of the prosecution. Whether the same
would be a good ground for rejection of the prosecution case. In State
of Himachal Pradesh vs. Sanjay Kumar alias 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
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
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 26
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.”
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
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 27
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…”
25. In Gian Chand others vs. State of Haryana
reported in 2013(4) P.L.J.R. 7 (S.C.), it has been held:-
“11. The effect of not cross-examining a witness on a
particular fact/circumstance has been dealt with and
explained by this Court in Laxmibai (Dead) Thr. L.Rs. Anr.
v. Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR 2013 SC
1204 observing as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 28
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.” (Emphasis
supplied)
(See also: Ravinder Kumar Sharma v. State of Assam Ors.,
AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya
Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of
Haryana, JT 2013 (8) SC 181).”
12. The defence did not put any question to the
Investigating Officer in his cross-examination in respect of
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 29
missing chits from the bags containing the case
property/contraband articles. Thus, no grievance could be
raised by the appellants in this regard.”
26. From the evidence of the doctor (PW-7), though is
also found admitted at the end of the defence that the victim was
carrying pregnancy, has been corroborated by the doctor to be of 20
weeks, goes out of controversy. Apart from this, even in worst case
accepting the victim to be a consenting party for the time being, the
defence had not suggested her to be major. On the other hand, there
happens to be specific disclosure in the complaint petition that at the
time of occurrence, she was less than 15 years of age, which has not
been challenged. That being so, at that very moment, she was not at
all competent enough to give her consent.
27. So far application of Section 313/ 511 I.P.C. is
concerned, it is not at all found duly substantiated in the background
of the fact that in spite of inconsistency, there happens to be no
disclosure that she was administered liquid or tablet, whereupon did
not justify its application. Hence, is set aside. However, so far finding
relating to Section 376 I.P.C. is concerned, after having analytical
scrutiny of the material available on record.
28. The finding recorded by the learned lower Court did
not attract interference. Consequent thereupon, the same is confirmed.
Patna High Court CR. APP (SJ) No.167 of 2015 dt.08-10-2018 30
As appeal to that extent sans merit, whereupon dismissed. Appellant
is on bail, hence his bail bond is hereby cancelled directing him to
surrender before the learned lower Court to serve out the remaining
part of sentence within four weeks, failing which the learned lower
Court will proceed against the appellant in accordance with law.
(Aditya Kumar Trivedi, J)
Vikash/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 12.10.2018
Transmission 12.10.2018
Date