Shib Shankar Kisku vs State Of West Bengal on 14 February, 2020
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Sahidullah Munshi.
The Hon'ble Justice Subhasis Dasgupta.
CRA No. 646 of 2014
Shib Shankar Kisku
State of West Bengal
For the Appellant : Md. Sarwar Jahan, Adv.
Md. Ashraful Huq, Adv.
Mr. Firoze Hassan, Adv.
Ms. Mousumi Mitra, Adv.
For the State : Mr. Arun Kumar Maity, Ld. A.P.P.
Mr. Narayan Prasad Agarwala, Adv.
Heard on :17.09.2019, 20.09.2019, 11.11.2019,
Judgment on : 14.02.2020
Subhasis Dasgupta, J:-
This criminal appeal is against the order of conviction and sentence.
Learned Additional Sessions Judge, 2nd Court, Purulia, by his order of conviction
dated 22.08.2014 and sentence dated 25.08.2014, in Sessions Trial No. 9 of
2010, arising out of Sessions Case No. 34 of 2014, convicted the
accused/appellant after holding him guilty for offence under Section
376/448/506 (Part-1) of Indian Penal Code, and sentenced him to suffer ten (10)
years rigorous imprisonment with a fine of Rs.5000/- (rupees five thousand), in
default to suffer rigorous imprisonment of one (1) year for the first count, and six
(6) month for the offence under second count, and one (1) year for the offence
under third and last count. The established facts during trial may be mentioned
here for addressing the issue raised in this appeal most effectively, which may be
mentioned as hereinbelow.
A tribal girl belonging to Santal community perusing her study in class VIII
of a school was physically violated by accused of tribal community living in the
same village on 7th Ashar 1415 B.S. corresponding i.e. 22.06.2008, getting her
alone in home during day time. The accused/appellant subjected the victim girl
to threat on repeated occasions while doing physical violation putting her in a
fear of death. The girl concealed her physical violation by accused to her parents
in consequence of threat of accused. The parents of the victim suddenly noticed
physical changes of victim daughter, when on being interrogated, the victim
carrying then six (6) months old pregnancy, narrated everything to her parents as
to how her pregnancy was brought about pointing out her finger towards the
accused/appellant, as culprit of her pregnancy. The bewildered parents sought
for interference of their Majhi Samaj, what is largely followed in the Santal
Community for a local resolution of the dispute cropped up in them with an effort
for a discussion in salish so that there could be an arrangement of marriage of
their daughter. The accused/appellant remained absent on two dates in the
meeting. The de-facto complainant/father of the victim girl had to obey the
instruction/decision given by his fellow community members asking the father to
wait for few months, and upon completion of which the de-facto complainant
father was given free hands to take recourse to law. In the mean time, the
victim/prosecutrix had delivered a child. Irresistibly there was delay of about
seven (7) months thus caused in lodging the F.I.R.
The defense version in simpliciter is that victim girl consented to the sexual
act performed on her mutually and voluntarily, as the victim girl was about
twenty (20) years of age at the relevant point of time. So, the sexual intercourse
was held by reason of conscious decision of the victim girl for her consent to the
sexual acts performed voluntarily.
The Trial court after framing charge under Section 376/448/506 I.P.C.
against the accused person proceeded to hold trial, and ultimately concluded the
trial collecting as many as sixteen (16) witnesses, out of which PW-1 is the victim
herself, while PW-2 and PW-4 are the parents of the victim girl, PW-3 to PW-5 are
the aunt and uncle respectively, PW-6 determined the potency of accused, PW-7
to PW-9 are the co-villagers attending the salish convened for the purpose at the
request of the PW-4 so that there could be an arrangement of marriage of the
victim girl, PW-10 is doctor examining the victim and measuring/calculating age
of pregnancy of victim, PW-11 is doctor performing Ossification Test for the
determination of age of the accused, PW-12 is Recording Officer, PW-13 is the
scribe of F.I.R, PW-14 is doctor performing Ossification Test for the determination
of age of the victim, and PW-15 and PW-16 are the Investigating Officers in this
Learned advocate for the appellant principally focused his argument urging
two (2) submissions. Firstly; he strenuously made his submission that the age of
the prosecutrix was much above sixteen (16) years, when she already reached
her age of discretion and the victim/prosecutrix having reached to her age of
discretion consented to the alleged act of physical violation voluntarily, what had
already been admitted by the prosecutrix, claiming to have been violated on
repeated occasions i.e. as many as 5-6 times in her own house.
Secondly; he urged that when there had been inordinate delay in filing the
F.I.R., there left sufficient space during the intervening period of delay to make
exaggeration or embellishment in the version of the prosecution story and for
such inordinate delay remaining unexplained, the conviction of appellant should
not be sustained in law, and liable to set aside.
Raising such arguments, the learned advocate for the appellant proposed for
rendering the appellant's conviction to be bad in law, and setting aside the
sentence accordingly, which we feel inclined to address the points, raised
hereinabove by the discussion made hereinbelow.
The respondent/State challenged the appeal supporting the order of the
Trial Court taking recourse to the presumption contained under Section 114(A) of
Evidence Act, read with Section 90 of the Indian Penal Code. The
respondent/State strongly contended that the testimony of the prosecutrix
denying to have consented to the sexual acts not having been discredited in the
cross-examination, the same would stand, and the consent to the sexual acts
was not a conscious decision of prosecutrix/victim, and rather it was obtained by
the accused/ appellant putting the victim in a fear of death.
At the very threshold of this case, this is to be put on record that a tribal
girl pursuing her study in class VIII, came before the court alleging her physical
violation, by a person, who of course belonged to a tribal community, living in the
self-same village, wherein the victim/prosecutrix had her ordinary residence.
Another significant fact is that it is not a case of accused/appellant that the
doctrine of promiscuity would be attracted against the victim/prosecutrix for her
promiscuous behaviour, wherein the sexual intercourse was held upon the
victim with a promise to marriage.
In a tradition bound society, tribal people of Santal community observe
some peculiar social customs, which get automatically inculcated into such tribal
girl (victim girl), while facing upbringing in the family and thus strongly inducing
her (victim/prosecutrix) to follow the same in future. We cannot be oblivious of
the fact that still tribal people even after the progress of civilisation, since the day
of our independence, would prefer to settle their own disputes locally by the
headman of their community, when there is fear of being ostracised from their
own community in the event of showing any disrespect or causing any disobey to
the decision reached by the headman of their community.
The point now raised, needs to be addressed taking note of practice,
precedent and customs of such tribal community followed in the instant case,
and the extent of evidence adduced to that effect.
As regards the first point raised in this case, the appellant's stand was that
victim was a consenting party to the act of physical violation, and she was about
twenty year old, and thus, the pregnancy of the victim was the fall out of the
consensual sexual act performed mutually between the parties.
It goes without saying that victim (PW-1), graphically described in her
cross-examination the manner, when she was ravished forcibly, making it more
strengthen than what she had stated in her examination in chief. She stated that
on 7th Ashar, 1415 B.S. corresponding to 22.06.2008, while she was alone in the
veranda of her house, at about 1-2 P.M. suddenly accused/appellant appeared in
front of her veranda of the house, touched her body and dragged her inside the
room. The victim neither had any previous acquaintance with the accused, nor
any speaking/visiting terms with the accused/appellant. The victim could see the
accused in the village as a co-villager, and nothing else. As soon as the
accused/appellant touched her body, she could discover the culpable intention of
accused/appellant. After dragging the victim, she was made undressed by
accused, and then committed rape upon her providing no scope to raise any voice
against the act of physical violation committed upon her. She consistently spoke
in her cross-examination that she had been over powered by the accused due to
pressing her mouth so that she could not raise any voice. She maintained her
stand in evidence that the accused threatened her not to disclose the incident to
anybody, else he would finish her. She claimed to have been ravished several
times (5/6 times) by accused/appellant in her own house, and that too in day
time and all the times accused threatened her with dire consequence, and as a
result of which she could not narrate the incident to her parents till her
pregnancy was detected by her parents, manifested with changes of her physical
appearance. Thus, pregnancy of the victim girl was disclosed by victim girl to her
parents when she was carrying about six (6) months old pregnancy.
As regards the topography of the house, wherein the victim was subjected
to repeated physical violation by the accused/appellant, evidence is there, as
revealed from the cross-examination of witnesses (PW-1 to PW-5), that both
parents of the victim and uncle's family of the victim, reside in same bastu,
sharing a common courtyard, and at the relevant point of time, the main gate of
the house of the victim was closed, and when there was no family member
available in the house of victim.
There was no cross-examination even in the form of putting suggestion of
denial that the family members of the uncle of victim had their enough occasion
to remain present at the relevant point of time in the house, and providing them
sufficient scope on their part to notice the accused/appellant visiting the house
of victim on the relevant dates, while she was alone.
The pregnancy of the victim demonstrated with her certain physical
changes in her appearance provided parents (PW-2 and PW-4) to know about
such ill doings, and on being interrogated, the victim disclosed for the first time
about the cause of her pregnancy, and it was brought about by whom. The
victim explained to her parents that having received threat of dire consequence
all the times, she was made to face physical violation by accused. She had
received threat requiring her not to disclose the same else, accused would finish
Since in a case of rape the testimony of victim prosecutrix is of highest
significance, relying upon which there could be conviction without any
corroboration, provided the version of the testimony is otherwise acceptable, the
accused/appellant challenged to discredit the credibility of the version of victim
referring her own evidence, wherein she admitted to have been subjected to
repeated physical violations by accused, and that too in day time all the times in
her own house, and when the victim did not raise any voice, in spite of having
sufficient opportunity there at the moment, which according to appellant, would
not have been possible, had there not been any consent of victim girl.
Learned advocate for the appellant argued that since the victim was more
than twenty (20) year old girl at the relevant point of time, she voluntarily
consented to the sexual acts performed upon her, and did sex in an enjoying
manner, and subsequently preferred to conceal the same for a considerable
period of time giving sufficient indulgence to accused for her further physical
violation in a repeated manner. Adverting to the evidence of PW-4 (father of the
victim), learned advocate for the appellant argued that the father was aware of
the sexual relationship of her daughter with accused, as on the first date itself
i.e. 7th Ashar 1415 B.S., the father could know about the act of having committed
physical violation forcibly upon his daughter from his wife, after he had returned
back to his house from the field. According to appellant, despite knowing such
incident with formidable impact of it, nothing could be raised in expression of
grievance, and rather ignored the same giving scope to his daughter (victim) to
continue and grow her sexual intimacy with the accused. And thus, such
inaction on the part of the father of victim till appearance of pregnancy of her
daughter was highly indicative of sexual intimacy of the victim daughter with
accused inconsequence of their mutual affairs at least with the knowledge of
parents of victim girl.
The respondent/State controverting such argument raised by the appellant
submitted that accused managed to obtain submission of victim, a mere act of
helpless resignation in the face of inevitable compulsion by reason of the threat
being exerted upon the victim, which could not be construed to be conscious
decision of victim, while she was put to face physical violation on repeated
occasions, and that too getting her alone in her own home during day time.
Upon visualizing the evidence of PW-2 and PW-4 (who are parents of the
victim), PW-3 and PW-5 (the aunt and uncle of the victim) and PW-7, PW-8 and
PW-9, (who are witnesses attending the salish held over the issue), it appears
that the family members of the victim girl virtually noticed the physical changes
of the victim girl in the month of Agrahayan, when victim was carrying six (6)
months old pregnancy, as determined by PW-10 (doctor), and on being
interrogated, the victim narrated the cause of her pregnancy, and how it was
brought about to her. Since, victim herself did not disclose anything in her
evidence providing her father to know about the cause of her pregnancy, and
further the mother of the victim not having disclosed anything to her husband
(PW-4), contrary to the statement of victim daughter, the evidence of father of the
victim (PW-4) ascertaining to have gathered knowledge on the first day of incident
would be without any credence in view of provisions contained in Section 6 of the
Evidence Act.
The parents of the victim girl in particular, the father of the victim girl
having known such incident after being disclosed by their daughter, was not
prepared to take it lightly without any action on his part. The father informed
the headman of his community to call for a village salish (meeting). PW-7 and
PW-9 attended such salish as members of such salish, PW-8 attended such
salish being a headman of Majhi Samaj (Santal Community). According to PW-7,
8 and 9, out of which, PW-9 was then elected Panchayat member, on the two
dates, scheduled for the purpose i.e. on 23rd and 24th Agrahayan 1415 B.S. the
accused remained absent, and as a result no decision could be reached, which
was basically called for discussion, so that there could be an arrangement of
marriage of the victim girl. The father (PW-4) then had to wait for few months
after being requested by their community people, even after the entire effort of
calling for a salish proved to be a futile exercise.
Learned advocate for appellant in his conscious effort to establish a case
with positive consent against the allegation of commissioning physical violation,
further drew attention of the court to the evidence of PW-8 (headman of Majhi
Samaj), wherein the headman stated that meetings were called upon to state that
a relation was grown up between the victim and the accused/appellant.
Referring such evidence, learned advocate for the appellant persuaded us to
believe that besides consent sexual intimacy would not have made possible and
upon appreciating the same, the accused appellant ought not to have held
convicted.
While submitting a case of consent in respect of the physical violation of
victim, learned advocate for the appellant incidentally focused upon the evidence
of PW-14 (the doctor holding Ossification Test of the victim), wherein the doctor
determined the bone age of the victim to be above 18-20 years on 03.02.2009,
and encashing such piece of evidence, a very strong argument was raised that
victim was much above 18 year old on the date of incident after application of
relaxation of two years as per precedent. A further reference was drawn to the
evidence of PW-4, wherein the father of the victim made statement disclosing the
present age of his victim daughter, as 18 year old on the date of adducing
evidence i.e. on 2nd August, 2010. Taking support of the Ossification Test Report
of the victim together with the testimony of father of the victim disclosing the
present age of the victim, a sincere effort was made to establish that victim was
at least above 16 year old on the date of incident, when she had already reached
her age of discretion so as to give her free consent to the sexual act committed
upon her mutually and voluntarily.
To embolden the stand of appellant, learned advocate for the appellant
relying on decisions; reported in 1982 SCC (2) 538, delivered in the case of Jaya
Mala Vs. Home Secretary, Government of Jammu Kashmir Ors.,
submitted that the ratio decided in that case was that for the determination of
age of a victim girl, one can take judicial notice that the margin of error in age
ascertained by radiological examination is two (2) years on either side, (2008) 15
SCC 223, Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, submitted
that ratio decided in the case of Vishnu Vs. State of Maharashtra reported in
(2006) 1 SCC 283, propounding that the opinion of the Medical Officer is to
assist the court as he is not a witness of fact and the evidence given by the
Medical Officer is really of an advisory character and not binding on the witness
of fact, was reinforced in such case that the determination of age done medically
by the doctors should be given flexibility of two (2) years on either side, AIR 2003
SC 2081, delivered in the case of Jinish Lal Sha Vs. State of Bihar, wherein
the Apex Court reversed the order of conviction after it was affirmed by the
concerned High Court in a judgment of a Trial Court under Section 366A/376
holding the accused to be guilty. The Trial Court and the concerned High Court
while maintaining conviction, believed the testimony of the victim girl together
with the radiological determination of age of victim without taking care of the
testimony given by the father of the victim girl. The testimony of father of victim
girl was sufficient enough to reveal the age of victim daughter, when she was
taken away by the accused, and it was 19 years on that day. The Apex Court
considered the age of the victim given by the father of the victim, compared to the
other evidence, like testimony of the victim girl and radiological examination
report of the victim girl in determination of her age, and upon consideration of
which the Apex Court addressed the issue observing that when the victim left the
house of the father, she was not less than 18 years of age. Besides above, the
mandatory requirement in regard to her consent having appreciated properly by
the Apex Court, the accused was favoured with acquittal.
Since, the victim/prosecutrix reached to a vulnerable age at the moment,
when she had been physically violated on repeated occasions for her consent to
the sexual acts, learned advocate for the appellant relying on a decision reported
in (1981) 1 SCC 107 in the case of Maru Ram Vs. Union of India submitted
that upon application of age relaxation of two (2) years on either side in respect of
the bone age, determined by the radiologist in course of the Ossification Test of
victim girl, the benefit of doubt in the given set of facts ought to have been given
to the accused/appellant instead of convicting him. In the referred case, the
constitutionality of Section 433(A) Cr.P.C. was challenged in writ jurisdiction
before the Apex Court after the accused was held convicted and sentenced
appropriately, when it was propounded by the Apex Court that benefit of doubt
should be in favour of the accused committing the crime. In the case at hand,
there is hardly any scope to favour the accused with benefit of doubt, where the
victim/prosecutrix consistently denied to have consented to the sexual acts
leaving no chance to apply the benefit of doubt, even after application of age
relaxation of two years.
In the case referred by appellant, reported in (2018) 9 SCC 248, delivered
in the case of Rajak Mohammad Vs. State of Himachal Pradesh, the victim
had freely moved around with accused/appellant, and in course of such
movement the victim came across many people at different point of time, when
the victim did not complain of any criminal act on the part of the accused so long
she remained in the company of accused/appellant. The case in hand revealed
that the victim was violated on several occasions in her own house, and that too
during day time. In the referred case, the victim/prosecutrix contradicted her
previous statement, unlike the case in hand. In support of age of the victim, the
school admission form and the certificate issued by the school were produced in
evidence. The teacher of school, where the victim pursued her study at one point
of time, proved the admission form. The details of the admission register were
entered obtaining information from school leaving certificate, issued by a
government primary school. The certificate issued by the government primary
school on the basis of which the details in the admission form, were entered,
remained un-exhibited in the trial. The mother of the victim also remained
unexamined in such case. Upon consideration of the totality of the facts in such
case, the benefit of doubt was granted to accused/appellant. The referred case is
thus, distinguishable on facts from the case under reference.
State/respondent assailing such argument of the appellant submitted that
the Ossification Test Report could not be a conclusive proof of age where
flexibility of 2 years on either side had become the binding precedent as per
consistent view of the Apex Court, and on applying age relaxation of 2 years on
the lower side of the age, as found in the Ossification Test Report, the
victim/prosecutrix could be safely taken to be less than 16 years of age at least
on the date of incident i.e. on 22.06.2008, corresponding to 7th Ashar, 1415 B.S.,
leaving no scope for the victim to exercise her free and conscious consent to the
sexual act committed upon her, complained of.
Thus, according to State/respondent, the consent of a minor, if given or
obtained otherwise than on consent to the sexual act, complained of, prior to
reaching her age of discretion, would be without any relevance.
A perusal of the evidence adduced by the Investigating Officers (PW-15
and PW-16), reveals that none of the Investigating Officers ever attempted to
collect any age proving document of the victim girl, at least the school certificate,
wherefrom the victim last studied. The categorical evidence of the victim/PW-1 is
very significant to reveal that at the time of occurrence, she was a student of
class VIII of Malancha High School, and further she stopped her study two years
ago, which she revealed in course of her evidence given on June, 2010, in
response to an incident held on 22.06.2008.
It is equally more true that there was no cross-examination intended to any
of the Investigating Officers for having an explanation from the Investigating
Officers as to what prevented the Investigating Officers from collecting such age
proving document of the victim girl for appropriate application of adverse
presumption, contained in Section 114(g) of Evidence Act.
As regards the consent, the State/respondent while supporting the order of
conviction, argued that when the victim/prosecutrix in her evidence consistently
stated that she had been violated several times, getting her alone in the home
after putting her in a fear of death, which received corroboration not only from
the parents of the victim (PW-2 and PW-4), but also from the aunt and uncle of
the victim (PW-3 and PW-5), and further the issue of putting the victim in a fear
of death by reason of the threat being exerted upon the victim, not being shaken
to doubt in cross-examination, there was no scope for drawing an inference that
the victim had taken her conscious decision and accordingly consented to the act
under reference.
Learned advocate for the respondent/State proposed for appropriate
application of the presumption available under Section 114 (A) of Evidence Act,
read with Section 90 of Indian Penal Code.
Reliance was accordingly placed by learned advocate for respondent/State
on a decision reported in (2005) 1 SCC 88, delivered in the case of Deelip Singh
@ Dilip Kumar Vs. State of Bihar, while advancing argument that the instant
case was otherwise than on consent i.e. consent was squeezed to be obtained
from victim girl forcibly, putting her in a fear of death, in consequence of threat,
and submitted further with much emphasis that whether a particular case of
this nature, where consent plays a predominant role, had to be adjudged from
the attendant circumstances, and in the given set of facts, the attending facts
were not supportive of coming to a definite conclusion that the act complained of
was a product of conscious decision of the victim to the sexual acts.
Reliance was further placed by the respondent/State on a decision reported
in 2015 SAR (Criminal) 388, delivered in case of Deepak Vs. State of
Haryana, while submitting that the instant case was such, where sexual
intercourse was not at all disputed by the accused/appellant, and what was
challenged was the consent of victim to the sexual intercourse having held
several times mutually and voluntarily. Thus, according to respondent/State,
commission of sexual intercourse not being disputed upon the victim, and when
the victim/prosecutrix consistently stated in her evidence that she did not give
any consent to the sexual intercourse done by the accused on her, which
received corroboration from other witnesses, the court is obliged to draw the
presumption under Section 114(A) of the Evidence Act against the accused
holding that he had committed sexual intercourse on the prosecutrix/victim
against her will and against her consent.
Respondent/State further proceeded to derive capital from a decision
reported in (1996) 2 SCC 384 delivered in the case of State of Punjab Vs.
Gurmit Singh and Ors., while offering explanation as to what prevented the
victim and ultimately her parents from seeking redressal before the law
enforcing agency, for their grievance, quoting some of the observations, made in
Para-8 of such decision, that a girl, in a tradition-bound non-permissive society
in India, would be extremely reluctant even to admit that any incident, which is
likely to reflect upon her chastity had occurred, being conscious of the danger of
being ostracised by the society, or being looked down upon by the society. Her
not informing the teachers or her friends at the examination centre under the
circumstances cannot detract from her reliability. In the normal course of
human conduct, this unmarried minor girl, would not like to give publicity to the
traumatic experience, she had undergone and would feel terribly embraced in
relation to the incident to narrate it to her teachers and others, overpowered by
feeling of shame and her natural inclination would be to avoid talking about it to
anyone, lest the family member and honour is brought into controversy.
Since a Santal community belonging minor girl having fallen a victim to the
insatiable hunger of sex, she cannot be expected to divulge the same ignoring all
sorts of ordinary consequence naturally to follow, for the stigma of the incident
attached with it, and upon consideration of the same, we most respectfully apply
the same subscribing our same view to the observation of the Apex Court given in
context with the situation making a victim girl most vulnerable at her age.
Contradictions, inconsistencies and discrepancies in the evidence without
being potent and major enough cannot be expected to reach to the very core of
the prosecution case and it should be disregarded. In order to fortify the same,
respondent proceeded to take shelter on a decision reported in (1999) 9 SCC
525, delivered in the case of Leela Ram (Dead) Through Duli Chand Vs. State
of Haryana Anr., wherein it was decided that minor embellishment and trivial
discrepancy would not themselves render the evidence unbelievable.
Regarding the necessity of corroboration, as regards the testimony of the
victim/prosecutrix, learned advocate for the respondent relying on a decision
reported in (2004) 8 SCC 153, delivered in the case of State of H.P. Vs. Shree
Kant Shekari, submitted that there was no rule of law that the testimony of the
victim could not be acted upon without corroboration in material particular.
Thus, according to respondent/State, the theory of corroboration is a rule of
prudence, applicable in a case, where the face value of testimony of the victim
would be difficult to accept for some sufficient reasons, and the court in such
circumstances, would seek assurance to her testimony from other evidence.
Referring such decisions, it was sought to establish that apart form the
corroboration, the victim received in this case, her sworn testimony was sufficient
enough to base conviction.
In such scenario of rival submissions canvassed over the issue of consent
and age of victim girl, as advocated by either parties to this case, we are thus
called upon to answer whether the victim was violated with her consent or
without her consent.
Prior coming to the core issue, incidental determination of age of the victim
poses a great question to be equally addressed to by us. The first date of
occurrence, when the victim was first violated is on 7th Ashar, 1415 B.S.,
corresponding to 22.06.2008. On the date of adducing evidence, victim claimed
her to be of fifteen (15) year old, and she maintained such stand during her
statement made before learned Magistrate under Section 164 Cr.P.C. (Exhibit-1).
We are surprised to learn that the victim having pursued her study in a school at
Class VIII at the relevant point of time, the Investigating Officers failed to collect
any age proving document, though, victim was put up for Ossification Test for
determination of her age. It makes a strong sense for us to accept the settled
proposition in the given circumstances that the testimony of the
victim/prosecutrix, if alone can form the basis of conviction, provided the same is
otherwise acceptable. The latches on the part of the investigation though, sought
to be encashed by the appellant taking aid of Section 114(g) of the Evidence Act,
but the testimony of the victim not having suffered from any infirmity or blemish
whatsoever, the same would inspire confidence.
Upon perusal of the evidence of the victim/prosecutrix, it appears that the
threat of the accused/appellant thereby, putting the victim in a fear of death
remained undiscredited in the cross-examination of victim/prosecutrix, and the
same, however, remained undisturbed even after putting an unproductive
suggestion, as regards the consensual sex, which was ultimately denied by the
victim.
The courts are supposed to deal with cases of sexual crime against women
with utmost sensitivity. Mere non-production of age proving document in the
given set of facts cannot be taken to be a strong ground, ipso facto to disbelieve
the age of the victim girl, as established during trial. Alternatively it may be put
in this way that the accused/appellant without having obtained any explanation
from the Investigating Officer by putting sufficient question during the cross-
examination, the circumstances are not supportive of drawing adverse
presumption under Section 114 (g) of the Evidence Act against the prosecution.
The Trial Court applying the age relaxation of two (2) years in lower side of
the bone age of the victim, assessed by radiological examination for Ossification
Test, arithmetically proceeded to ascertain the age of the victim on the date of
incident to be less than sixteen (16) year old keeping in mind the age of the
victim, disclosed on her adducing evidence i.e. on 21.06.2010, for an incident
held on 22.06.2008. The entire exercise done by the Trial Court appears to have
been arithmetically reached, while making estimation of age of a victim in a case,
where neither the victim, nor her parents even disclosed the actual date of birth
of the victim girl.
The Trial Court thus, proceeded to calculate and estimate the age of the
victim girl, taking her to be of fifteen (15) years of age on 22.06.2208, as she
claimed to be of seventeen (17) years of age on 21.06.2010, the date on which she
adduced her evidence in court. The endeavour already put by the Trial Court for
the assessment of age of victim, in that view of the matter, cannot be doubted
anymore. However, if the testimony of the father of the victim (PW-4) is
considered, who described her daughter to be of sixteen (16) years of age on
02.08.2010, the day when he adduced evidence before the court, will not help the
accused to claim any benefit, without successful proof of consent of victim girl.
Therefore, even after taking into account the evidence of father of the victim (PW-
4), the victim can safely be described to the either about to reach the age of
discretion, or just crossed her age of discretion, rendering her status to be most
vulnerable. Even after assuming that the victim has just crossed her age of
discretion in recent past, that itself alone will not pave the way for acquittal
without discharging the burden of proof in rebuttal of the evidence of the victim
denying to have consented to the sexual acts performed upon her by reason of
threat perpetrated upon her.
So, mere reaching the age of discretion alone without making out a strong
case of consent, the assessment of the age, as reached by the Trial Court should
not be looked with suspicion.
The term "consent" appearing in Section 90 of Indian Penal Code appears
to have not been defined in positive sense, which may be reproduced hereunder;
"90. Consent known to be given under fear or misconception. –
A consent is not such a consent as is intended by any section of this
Code, if the consent is given by a person under fear of injury, or under
a misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such
fear or misconception; or
[Consent of insane person] if the consent is given by a person who,
from unsoundness of mind, or intoxication, is unable to understand the
nature and consequence of that to which he gives his consent; or
[Consent of child] unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age."
Whether a particular case of physical violation is with consent or absence
of consent, it is question of fact, which needs to be determined from the evidence
adduced in every case before invoking the rigour of Section 114(A) of Evidence
In the instant case, it is significant to note that during the examination of
accused under Section 313 Cr.P.C., the plea of consent remained unpleaded. The
appellant was not able to give any satisfactory explanation in his statement
recorded under Section 313 of the Code nor was able to adduce any defence to
rebut the presumption contained in Section 114(A) of the Indian Evidence Act,
1872 against him. As has already discussed that the credibility of PW-1 as
regards the threat, she had received while being physically violated, could not be
impeached even in her cross-examination inclusive of unproductive cross-
examination, ultimately being denied by the victim in her evidence, so the
accused/appellant miserably failed to make out a stand, contrary to the version
asserted by the victim herself. The question of consent is really a matter of
defense of the accused, and it is for the accused to place the material to show
that there was consent, in a case where victim specifically and consistently
denied to have consented to the sexual acts on several occasions.
The presumption engrafted in Section 114(A) of the Evidence Act is
rebuttable one, subject to discharge of onus in the event of onus being shifted to
accused in a case where victim denied to have consented to the sexual act. The
proof of burden as regards the consent in a case where defense is based purely
on consent, is thus directed against appellant.
While determining a case based on consent or absence of it, the same
could be gathered from the attendant circumstances, which was rightly referred
by the learned advocate for the State/respondent [Deelip Singh @ Dilip Kumar
(Supra)] to which we sincerely subscribe our same view on the issue. In an effort
to ascertain required consent, the previous or contemporaneous acts or the
subsequent conduct can be legitimate guide.
Let us look back once again to the evidence adduced during trial. Victim in
her evidence stated that she had no previous acquaintance with the accused, not
even any visiting terms. The victim only found the accused/appellant residing in
the same village, as her co-villager only. She was not even provided with any
circumstances to talk with the accused/appellant even before the incident. The
moment when she was first physically violated, she was alone in her home, when
the main gate of her house was closed. In such state of situation, the
accused/appellant managed his entry in the house of the victim getting
opportune moment, and which the accused/appellant continued to make use of
the same on repeated occasions, and that too in day time.
Evidence is there that the accused ravished the victim forcibly on several
times in her own house with a threat of dire consequence. The victim girl being
highly frightened of threat of accused did not dare to disclose the same even to
her parents. She was put to a strong panic stricken state of mind by reason of
threat of accused. She only tried to conceal the same out of her shyness and
shame, at the cost of protecting her chastity upon sensing the chance of being
ostracised from her own community till her biological changes, as noticed by her
parents, when she disclosed everything to parents pointing her hands to the
accused/appellant as culprit of her pregnancy. She disclosed that she was
overpowered by pressing her mouth so that she could not raise any alarm at the
relevant time. The cross-examination transpired nothing revealing animosity of
the members (PW-7, PW-8 and PW-9) attending the salish held for the purpose,
against the accused/appellant.
The pregnancy of the victim being brought to light, the accused/appellant
preferred to remain absent in the village meeting, though he in his unsuccessful
attempt during trial attempted to make a case of consensual sex with the victim
girl. It is something revealing connecting the contemporaneous acts and
subsequent conduct of the accused. There was nothing established
conspicuously in the cross-examination that there was prior meeting of minds
between the parties, which ultimately grew into a sexual intimacy between them.
The sequential events, if cumulatively considered together, as revealed
from the evidence in its entirety, the physical violation, testified by the victim
herself can hardly be regarded to be a conscious decision of the victim, performed
mutually and voluntarily giving her express and conscious decision to that act.
Consequently, the consent was squeezed to be obtained from the victim after
consistently putting her in a fear of death which, however, remained unshaken to
doubt during the entire cross-examination of victim herself.
Thus, in the absence of consent being established conclusively in the
cross-examination of witnesses, it can be concluded that the consent was
obtained by the accused putting her in a fear of death, and while making
physical violation of the victim, the accused had reason to believe that the
consent to the sexual act, he had already squeezed, was given by victim in
consequence of such fear of death.
In that view of the matter, when commission of sexual intercourse by the
accused on the prosecutrix was not a disputed question of fact, the unimpeached
testimony of the victim particularly on the point of threat being exerted upon her
by accused, while making physical violation on repeated occasions, would
automatically invite rigour of Section 114(A) of the Indian Evidence Act, against
the accused/appellant for the peculiarity circumstances involved in this case, so
as to render him liable to suffer conviction under Section 376 I.P.C., at least for
the date of first instance i.e. on 7th Ashar 1415 B.S. corresponding to
22.06.2008, when the victim was first physically violated forcibly receiving threat
from the accused/appellant, which was itself sufficient to determine the offence
under Section 376 I.P.C. against the accused/appellant. Thus, while talking of
offence under Section 376 I.P.C. is concerned, it was made complete on the date
of first incident i.e. 22.06.2008, and consent if subsequently perceived to have
obtained will not improbalise such incident.
As regards the second point raised, an attempt was made by the learned
advocate for the appellant to highly improbalise the prosecution story by reason
of long delay being caused in lodging the F.I.R. Admittedly there was long delay
of about seven (7) months caused in lodging the F.I.R. It was contended by the
appellant that such long delay remaining insufficiently explained left room for
concoction and embellishment in the version of the prosecution case.
Respondent State assailing such argument of the appellant submitted that
sufficient explanation had been offered in the evidence, examined by the
prosecution, and upon viewing such sequential events together, the delay so
occurred in lodging the F.I.R. could not be construed to be fatal for the
prosecution. The respondent State further submitted that victim was tribal girl,
of whom the degree of intelligence and exposure could not be equated with urban
girl.
It is a case where victim concealed her physical violation receiving a
continuous threat of accused until her pregnancy was noticed by her parents
seeing her physically changes, when she was carrying about six month old
pregnancy. A tribal girl perusing her study in class VIII cannot be taken to be
much sensitive, compared to an urban girl of the same class and same age. The
socio-economic background of the victim is an important aspect, which we are
obliged to consider bearing in mind the practice, precedent and customs
observed in Santal community still. The dehumanizing act of accused/appellant
made unlawful physical intrusion upon the victim, left indelible mark in her
psychological traits, apart from the ignominy, she would face in respect of herself
assessment and dignity. The chances of being ostracized from society in the
event of illegal doing being brought to light is still in practice in Santal
community. It might be with such understanding, the minor victim girl
continued to conceal the incident to her parents receiving a threat from accused
until it was detected by her parents by reason of her biological changes. Such
conduct of the victim as regards the concealment of the incident to her parents
cannot be taken to be unnatural, and not sufficient enough to improbalise her
own version. The bewildered father, like PW-4, of the victim girl having known
such incident in his first attempt, tried to socialize the same bearing in mind the
stigma ordinarily attached with the incident, simply for the purpose of making
her daughter suitably rehabilitated.
Since, there was a Santal Samaj, as testified by PW-8, such Samaj was
called upon to deliberate on that issue so that there could be an arrangement of
marriage. When everything turned to be futile exercise on two dates scheduled
for meeting, because of the non-appearance of the accused/appellant in the
meeting, the father of the victim had to obey the decision of his fellow members
committee asking him to wait for few months, and then to lodge the complaint
against the accused/appellant for appropriate redressal. So all such events, if
picturised sequentially, nothing could be safely concluded to be abnormal,
improbable and unnatural, and it was sufficient enough to explain the delay
caused in lodging the F.I.R. The settled proposition is that delay in lodging the
F.I.R., if satisfactorily explained will not become fatal for the prosecution. This is
a case where the delay has been sufficiently explained in the evidence itself,
though not disclosed in the F.I.R.
The sworn testimony of victim/prosecutrix being believable and inherently
probable will inspire confidence apart from the corroboration she received from
other witnesses, as discussed hereinabove. In the absence of any discrepancy in
her evidence, it is sufficient enough to leave honest impression that she had been
physically violated by the accused/appellant without her consent. We are not at
all impressed to favour the accused/appellant with benefit of doubt, as sought to
be applied over here, for the shifted onus of accused/appellant not being
appropriately discharged.
For the discussion made above, we do not want to interfere with the
findings reached by the Trial Court, while holding the accused to be guilty of
offence under Section 376 I.P.C. The order of conviction having been recorded
adhering to the principles of law and after making perfect appreciation of the
evidence adduced on that score, there is hardly any scope to declare that the
findings reached by the Trial Court are perverse being not based on evidence.
The other offences, so determined by the Trial Court being incidental to the
principle determination of offence under Section 376 I.P.C will, however, remain
uninterfered with, because it appears to us that such offences under Section
448/506 (Part-1) I.P.C. have been perfectly determined appreciating the evidence
rightly.
We also do not want to interfere with the sentence already awarded against
the accused/appellant for the offences, for the same being appropriately awarded
in the instant case.
Both conviction and sentence would thus go unaltered. We maintain the
conviction and sentence awarded in this case.
The criminal appeal fails being without any merits, and accordingly
dismissed.
All the sentence to run concurrently and the accused/appellant be
provided with opportunity of claiming set off under Section 428 Cr.P.C., if any, in
respect of the period already undergone in the correctional home.
With this observation, the criminal appeal stands disposed of.
Department is directed to send a copy of this order to the concerned
Superintendent of Correctional Home, where the convict/appellant is detained.
Department is further directed to send a copy of this judgment along with
Lower Court Record to the concerned Trial Court without causing any delay
through the concerned District Judge.
Urgent certified copy of this order, if applied for, be given to the appearing
parties as expeditiously as possible upon compliance with the all necessary
formalities.
(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)
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