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2003 DIGILAW 951 (JHR)

Ahtesham Ali v. State of Bihar

2003-08-05

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J.- The appellant who was charged under Section 376 I.P.C. after being tried was convicted for committing the offence under Section 376 I.P.C. and thereby was sentenced to undergo R.I.for 10 years by the 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 19 of 1992. 2. Being aggrieved by the judgment of conviction and sentence, the appellant has preferred the present appeal. 3. The prosecution story in short is that on the date, time and place of occurrence the informant Sajda Khatoon (P.W.5) was returning at about 6. p.m. to her house from the house of Naseera, at that time the appellant Ahtesham Ali who was standing near his house and whose house is very close to the house of informant, seeing her, came there, caught hold of her, gagged her mouth, took her forcibly in his room and then on the point of dagger committed rape on her. She remained in the said room for 3 hours, she was brought out from the room at about 10:00 p.m. and then she was told by the appellant that he would marry her, if anything happens. The informant returned to her house and on being asked by her mother, she told that she was returning after reading. It is further stated that after 2-3 days of the said occurrence, in the evening at about 6 p.m., when the informant was going to call her mother and while coming back, the appellant Ahtesham Ali seeing the informant again caught her hands and took her in his room and then committed sexual intercourse with her and he released her at about 8 p.m. and again he assured her that he would marry her and that there was nothing to be afraid and at the same time she was also told that if she disclosed the occurrence to anybody, she would be killed by bomb. Out of fear, she did not tell anything about the occurrence to anybody. 4. The further case of the prosecution is that on 07.04.1991 the informant was having pain in her stomach., then she went to P.W. 1 Dhano Devi a midwife who examined her and then disclosed that she (informant) was carrying pregnancy. On hearing this she fainted and then her mother was called. 4. The further case of the prosecution is that on 07.04.1991 the informant was having pain in her stomach., then she went to P.W. 1 Dhano Devi a midwife who examined her and then disclosed that she (informant) was carrying pregnancy. On hearing this she fainted and then her mother was called. On query by the mother, the informant said to have narrated the entire story about the commission of rape by the appellant. Thereafter the informant's mother called Ahtesham AIi, the appellant, and then on being confronted, he asked to take the informant to the Doctor M.N. Sinha to abort the pregnancy and he also paid Rs. 400/- for meeting the expenses. The said midwife took the informant to Dr. M.N. Sinha, who examined the informant and thereafter cleaned the pregnancy. It is further stated that the news of rape by the appellant spread in the village and thereafter a Panchayati was held in which the father of the appellant Shaukat Ali was called and was requested by the villagers that the marriage of the appellant should be performed with the victim but Shaukat Ali, the father of the appellant refused. The informant subsequently learnt that the appellant and his father opened fire from their Rifle and Gun causing injuries to some persons. 5. Altogether 8 witnesses were examined on behalf of the prosecution to establish the charge against the appellant and one defence witness was also examined on behalf of the defence to prove Exhibit A and B i.e. the formal F.I.R of Jagarnathpur P.S. Case No. 52 of 1991. 6. Out of the 8 P.Ws., P.W. 1 is Dhano Devi, who is the untrained midwife and had detected that the informant was carrying pregnancy. She has stated that on the direction of the appellant she took the informant to Dr. M.N. Sinha who on examination found the child 'to be dead in womb and thereafter the womb was cleared by the Doctor. 7. P.W. 2 is the Adam Ansari who is the "Mama" of the informant, has stated that having come to know about the illicit relationship between the appellant and Sajda Khatoon the informant, he went to Madarsa and narrated the occurrence to the Punches. The Punches called Shaukat AIi, the father of the informant but he did not come and then the Punches decided that the appellant should marry the victim Sajda Khatoon. The Punches called Shaukat AIi, the father of the informant but he did not come and then the Punches decided that the appellant should marry the victim Sajda Khatoon. In his evidence, he has further stated that he learnt that Kaishar Ali the brother of the appellant and one more person were killed in the firing. 8. P.W 3 is Qayum Ali, who is a co-villager, has stated that he came to know about the entire story from Sagir Ali, the cousin of Shaukat Ali i.e. the father of the appellant. He further stated that the news regarding the abortion spread in the village and then Panchayati was convened and the Punches requested Shaukat Ali to marry his son with the informant i.e. Sajda Khatoon to which Shaukat Ali flatly refused. He has further stated that he heard the sound of firing and wanted to go towards that place but Sahdul Mian and Ahmed told him that the firing was being made from the house of Shaukat Ali. He has further stated that in the said occurrence of firing, the son of Shaukat Ali, namely, Kaishar Ali was killed and this witness was also an accused in connection with the case murder of Shaukat Ali. In Paragraph 10 of his evidence, he stated that the crowd in anger caught the brother of the appellant and beaten him to death. 9. P.W 4 is Mahmoon Khatoon, the mother of the victim. P.W 5 is the informant, Sajda Khatoon, P.W 6 is the I.O. 10. P.W 7 is the lady Doctor, who has medically examined the informant. 11. P.W 5 has stated in her evidence that she had been caught by the appellant while she was coming from the house of Nasira and then she was taken to his room, where the appellant committed rape on her under threat. She has further stated that again after 2 or 3 days, the appellant established sexual intercourse with her and continued it for 7 months on the allurement of marriage and threat. She has further supported. the case of the prosecution regarding the cleaning of his pregnancy by Dr. M.N. Sinha and also regarding payment of money by the appellant for meeting the expenses. 12. The learned counsel appearing for the appellant, Mr. She has further supported. the case of the prosecution regarding the cleaning of his pregnancy by Dr. M.N. Sinha and also regarding payment of money by the appellant for meeting the expenses. 12. The learned counsel appearing for the appellant, Mr. N.N. Sinha has vehemently argued that the informant was aged more than 16 years and the Doctor has also estimated her age to be between 16 to 18 years. The sexual relationship between the appellant and the victim which continued for 7 months was with the consent of the informant herself and, therefore, it cannot be said that it was a case of rape. He. has further submitted that the conduct of the girl i.e. the victim, clearly shows that she was a consenting party because she herself has admitted in her evidence that the appellant had kept her in his room for (3 hours and she also bluffed her mother by telling her that she was coming back after reading and further on the second occasion also when she is said to have been raped, she has stated that she remained with the appellant for 2 hours. Therefore, it is against the natural conduct of a girl who is said to have been raped. It has further been argued by Mr. Sinha, learned counsel for the appellant that the informant remained silent for 7 months, it is only when it: was declared by P.W 1 that she was pregnant, she narrated the story to her mother cannot be believed because the pregnancy of 7 months must have been visible and apparent to the mother of the victim as well as other inmates of the house but conveniently, the matter was not reported to anyone whatsoever and, therefore, it can be said that the mother wa3 also knowing about the said act but she kept mum. 13. According to Mr. Sinha if a full grown up girl consents to indulge in the act of sexual intercourse on a promise of marriage and continues to indulge in such an activity until she becomes pregnant, as in the present case, it cannot be said that on misconception of facts, the girl was induced to have sexual intercourse and it cannot be a case of rape. In support of his contention he has relied on the decisions reported in [1995 A.I.R. SCW 3012], [2003 Cr. In support of his contention he has relied on the decisions reported in [1995 A.I.R. SCW 3012], [2003 Cr. Law Journal 910 [ : 2003 (3) JLJR (SC) 97]], [2002 (1) J.L.J.R., 431], [1985 Eastern Cr. Cases 662], [1994 Cr. Law Journal 1535 (Calcutta)], [2003 Cr. Law Journal 1411 (Guwahati)]. 14. In 1995 A.I.R. SCW 3012, the facts of the said case were that the prosecutrix and the accused were neighbours and the girl was a constant visitor to the house of the accused and when the accused used to kiss her, she never objected and further that after the commission of the sex act, the prosecutrix went to dancing performance rather than to go to her parents and to inform them about the commission of rape on her. In those circumstances, the Supreme Court held that prosecutrix was a consenting party. But in the present case I find that the commission of rape by the appellant was on the point of threat and allurement of marriage, therefore, the facts of the case of the Supreme Court was quite different to the facts of the present case and the said decisions cannot be applied in the present case. 15. The facts of the case in the case of Virnal Suresh Karnble 2003 Cr. Law Journal 910 [: 2003 (3) JLJR (SC) 97] are also quite different. In the said case. the prosecutrix was a domestic servant of the accused and after commission of the alleged rape she was loitering in the locality for about 2 hours after the incident, did not report about the incident to her husband but cooked food for family and went to sleep. Even on the next morning she worked in four flats but did not report to anyone. Therefore, it appears that, that was a case of married lady and not of a girl of tender age as in the present case and, therefore, the decision of the said case is not applicable in the facts of the present case. 16. The third decision cited by Mr. Sinha i.e. 2002 (1) J.L.J.R. 431 also does not apply in this case, as the said case was a criminal Revision in which this High Court was considering the matter regarding discharge of the accused on the ground that no case was made out for framing of charge under Section 376 I.PC. 16. The third decision cited by Mr. Sinha i.e. 2002 (1) J.L.J.R. 431 also does not apply in this case, as the said case was a criminal Revision in which this High Court was considering the matter regarding discharge of the accused on the ground that no case was made out for framing of charge under Section 376 I.PC. It appears that in the facts of the said case, the High Court held that from the allegations made, it appeared that the prosecutrix was a willing partner, who never protested or obejcted to the commission of the rape by the accused whereas in the present case, as stated earlier, the consent, if any, was taken on the point of dagger and also after the commission of rape, the appellant had threatened to do away with the life of informant, if she disclosed the same to anyone and further that if she did not disclose the occurence to anyone, then he would marry her. 17. To force a girl of tender age, may be between the age of 16-18 years, to have sexual intercourse, on the point of threat of her life, can by no stretch of imagination, be said to be a case of sexual intercourse with consent of the victim. Therefore, in my opinion none of these decisions cited by the learned counsel for the appellant is applicable in the facts and circumstances of this case. 18. From the evidence of the victim, it is clear that she was forced to keep mum for a long period, as there was threat to her life by appellant, if she disclosed the commission of rape on her by the appellant to anyone. 19. Moreover, the facts that the irate crowd to the villagers had assembled in front of the house of the appellant and were pressing the father of the appellant Shaukat Ali to get his son i.e. the appellant married with the informant and on refusal by the father of the appellant, the matter was aggravated resulting in firing from the house of the appellant by his father as well as by the appellant and in that course; the crowd pulled out the brother of the appellant Kaishar Ali and was beaten to death. This also gives strength to the prosecution version and establishes that it is for the act of rape committed by the appellant on the informant, the entire vil. lagers were angry and were forcing the father of the appellant to marry his son with the informant. This is a very strong circumstance, against the appellant and in favour of the prosecution. 20. On the other hand, there are several decisions by the Supreme Court which says that even on the sole testimony of the prosecutrix, if her evidence is reliable and found to be truthful without looking for any corroboration, conviction under Section 376 I.P.C. can be made against the accused. It is relevant to quote one paragraph of the judgment of Supreme Court in the case of State of Punjab vs. Gurmit Singh [A.I.R. 1996 S.C. (1393)] "The testimony of victim in cases of sexual offences 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through anew form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." 21. In the present case I find the evidence of the prosecutrix to be truthful and reliable and further find that the act of sexual intercourse was established by the appellant on the point of threat and allurement and, therefore, it cannot be said that she was a consenting party to the sexual intercourse with the appellant. 22. In that view of the matter, the learned trial court has rightly held the appellant guilty under Section 376 I.P.C. and thereby convicted and sentenced him thereunder. I find that it is not at all a fit case to interfere with the judgment of conviction and sentence passed by the trial court. 11. In the result, this appeal fails and is dismissed and the conviction and sentence passed by the trial court against the appellant is hereby affirmed. The appellant who is on bail is directed to surrender to serve of the sentence.