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Ubed vs The State Of Bihar & Anr on 8 October, 2018

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

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