Baldhari Ohdar Vs. State of Bihar - Court Judgment

Excerpt:
indian penal code, 1860, section 376 - sexual intercourse with girl--again and again on promise by accused that he will marry her--but finally when girl become pregnant and this fact came in knowledge of her parents, accused refused to marry her—whether such act of accused will amount to rape--question of--plea of girl that for the first time, when accused caught her while she was returning after witnessing dance-drama programme, alone and raped her after taking her to a solitary place, he threated her and promised for marriage--itself shows that sexual intercourse which started that day was being repeated with her consent--non-reporting of this fact to her parents and her age about 18 years at time of first incident--further shows her consent--consequently, no offence is made out--fact that accused refused to keep her as his wife in spite of decision by panchayat and that she gave birth to child--has nothing to do with section 376--girl may seek other remedy for these acts. - - 3 to 6 as well as the medical evidence the trial court held the accused-appellant guilty of the charge under section 376, ipc and convicted and sentenced him, as stated above. chaturvedi, learned counsel for the appellant, has urged that medical evidence itself as well as the age stated by the prosecutrix at the time of recording of her evidence on 29-1-97 shows that she was aged about 18 years at the time of the alleged occurrence and the facts and circumstances of the case suggest that she was a consenting party to the sexual intercourse with the accused-appellant and even if it be assumed that she gave consent for sexual intercourse on account of false promise of marriage made by the accused-appellant no offence under section 376, ipc is made out, and in support of his contention he has cited the decision of this court reported in 1990 (2) pat ljr 375 (mirwali mohd. is bad in law and cannot be sustained. 10. at this juncture, it may be stated that now it is well settled that the conviction can be based on the testimony of victim(s) of sexual assault alone unless the same is shown to be infirm and not trustworthy. it is not a case where she was put in physical restraint with the result that her movement was restricted and she could not get the opportunity to complain that accused-appellant had forcible intercourse with her. 1 in her deposition as well as the medical evidence establish beyond doubt that she was aged about 18-19 years at the time of sexual assault/intercourse with accused-appellant. 1. this appeal, at the behest of the sole appellant baldhari ohdar is directed against the judgment and order dated 23-5-98 in s.t.no. 280/96 passed by sri tarkeshwar prasad, the then sessions judge, gumla whereby and whereunder the appellant has been convicted under section 376, ipc and sentenced to undergo ri for ten years.2. the case came to be instituted and investigated on the basis of a complaint petition no. c. 135/96 (ext. 1/1) filed by asthami kumari, the prosecutrix (p.w. 1) in the court of c.j.m., gumla on 23-8-1996.briefly stated, the prosecution case is as under :in the month of february 1996, on wednesday, at about 8 p.m. the prosecutrix was returning alone after witnessing dance-song programme in her busti at village ramdih, within p.s. basia, district gumla, when the sole accused-appellant, her co-villager, way-laid and over-powered her and took her to a solitary place and sexually assaulted her against her will. she wanted to raise alarm but she desisted when he gave an assurance to marry her and counselled her not to disclose this fact to any one else. thereafter he had sexual intercourse with her on many occasions and she carried his 5-6 months pregnancy and when her parents came to know about it sometime in the month of august 1996, a panchayati was conveyed in the village in which the accused-appellant confessed his guilt and took her away from the panchayat as his wife. he kept her for sometime at his home but on 21-8-96 he assaulted and threatened her saying that he would not marry her. ultimately, on 23-8-96 she lodged a complaint petition, which was drafted by p.w. 11, rameshwar sahu, an advocate, which was forwarded under section 156(3) of the code of criminal procedure by the court of c.j.m., gumla for institution and investigation of the case.on its basis, the present police case was instituted on 2-9-96, the formal f.i.r. (ex. 3) was drawn up, p.w. 10-a radheshyam tiwari, the then officer-in-charge, basia p.s., commenced investigation, visited the spot, sent her for medical examination and on completion of investigation charge-sheet was laid in court against the accused-appellant.3. the case was, ultimately, committed to the court of session by c.j.m., gumla on 3-12-96.4. the main defence is of innocence, bare denial of the involvement of the accused-appellant in the occurrence and of false implication.5. in support of its case the prosecution examined 13 witnesses. out of them p.w. 7 purander ohdar, p.w. 8 phulchand ohdar, p.w. 9 baraik rameshwar singh and p.w. 10 kameshwar ohdar are tendered witnesses. the other p.ws. are: p.w. 1 asthami kumari, the prosecutrix herself, p.w. 2 basanti devi, her mother, p.w. 3 musku nayak, p.w. 4 somru nayak and p.w. 5 willium bage are witnesses on the holding of panchayat, p.w. 10-a radheshyam tiwari, the investigating officer, p.w. 11 rameshwar sahu, who had drafted the complaint petition (ext. 1/1), p.w. 12 dr. parbati kumari nag who medically examined the prosecutrix on 7-9-96 and p.w. 13 mani nath nayak, the father of the prosecutrix.6. the defence, on the other hand, examined no witnesses.7. on consideration of the evidence and materials on record and mainly relying on the testimony of the prosecutrix (p.w. 1), p.ws. 3 to 6 as well as the medical evidence the trial court held the accused-appellant guilty of the charge under section 376, ipc and convicted and sentenced him, as stated above.7a. while assailing the impugned conviction, mr. a.k. chaturvedi, learned counsel for the appellant, has urged that medical evidence itself as well as the age stated by the prosecutrix at the time of recording of her evidence on 29-1-97 shows that she was aged about 18 years at the time of the alleged occurrence and the facts and circumstances of the case suggest that she was a consenting party to the sexual intercourse with the accused-appellant and even if it be assumed that she gave consent for sexual intercourse on account of false promise of marriage made by the accused-appellant no offence under section 376, ipc is made out, and in support of his contention he has cited the decision of this court reported in 1990 (2) pat ljr 375 (mirwali mohd. alias kalu v. state of bihar, o.p.) and a division bench authority of calcutta high court reported in 1984 cri lj 1535 (jayanti rani panda v. state of west bengal, o. p.). he further submitted that conviction of the accused-appellant under section 376, i.p.c. is bad in law and cannot be sustained.8. mr. n.n. mahto, learned a.p.p. appearing for the state, on the other hand, has supported the impugned judgment.9. the point that arises for consideration is whether the conviction of accused-appellant under section 376, i.p.c. can be sustained.10. at this juncture, it may be stated that now it is well settled that the conviction can be based on the testimony of victim(s) of sexual assault alone unless the same is shown to be infirm and not trustworthy. the evidence of victim(s) of sexual assault stands at par with the evidence of an independent witness, but where there is reason(s) and suspicious circumstances, and it is difficult to place implicit reliance on the testimony of the victim(s) of sexual assault, the court may look for independent corroboration of testimony of such witness for sustaining conviction on the charge of rape. the testimony of victim of sexual assault is vital.11. keeping this cardinal principle in mind one may now proceed to discuss the evidence of the prosecutrix (p.w. 1).12. asthami kumari, the prosecutrix, has testified to the effect in the chief-examination that in the month of chait (some time in the month of march) on one wednesday in 1996, around 8 p.m., while after witnessing dance-song programme she was returning alone, on the way, the accused-appellant, her co-villager, caught hold of her, took her near a tree, laid and sexually assaulted her. she has further stated that she could not raise alarm as he closed her mouth and threatened to kill her with bhujali and forbade from disclosing this fact by threatening her with dire consequences and the accused-appellant promised to marry her and in the absence of her parents he often visited her house and sexually assaulted her on promise to marry her. she has further stated that as a result of the sexual assault(s) she carried the pregnancy of the accused-appellant whereafter she disclosed the entire episode to her mother (p.w. 2), when she enquired about it and ultimately the villagers knew about it and when she requested the accused-appellant to marry her he refused and thereafter a panchayati was held in which the accused-appellant caught her hand and forcibly took her to his home but he fled from his home leaving behind her and she stayed at his home for 8 days and was ultimately, driven out by his parents. her evidence was recorded on 21-9-97 and at that time she stated her age to be 20 years. she has admitted in her cross-examination that on the night of the occurrence she remained with the accused throughout the night and on the next morning at about 7 a.m. she had returned home. her evidence itself shows that she did not narrate the incident to her parents even on the next day or on any other occasion that accused-appellant had sexually assaulted her on that night or on subsequent occasions until the pregnancy she was carrying had become prominent and that too in the month of july when her mother enquired about it. her mother (p.w. 2) has stated that her daughter (p.w. 1) had for the first time, disclosed to her about the sexual assault made by the accused on her after six months in the month of asadh. she did not even search her when she had returned next morning and not in the night when she had gone out of the house to witness the dance-song programme.13. p.w. 13, mani nath nayak, the father of the prosecutrix has stated that in the month of shravan he could know from his wife (p.w. 2) and daughter that the accused-appellant had sex with his daughter (p.w. 1) on the allurement to marry her. the prosecutrix has not alleged in the complaint petition/f.i.r. that at the time of sexual assault on the first occasion the accused-appellant had threatened her with bhujali or with dire consequences. the gist of the allegation in the complaint petition is that she had succumbed to the sexual assault(s) made by accused-appellant on the allurement given that he would marry her. thus, she has made a development at the trial that she had been ravished by the accused-appellant on the first occasion on the point of bhujali and under threat of dire consequences. the conduct of the prosecutrix in not raising hue and cry at the time of sexual assault(s), that she permitted the accused-appellant who often had sex with her at her house in absence of her parents and that she did not disclose about it to her parents until the pregnancy in advance stage was detected, in the setting of the facts and circumstances of the case, indicates that she was a consenting party to the sexual intercourse which the accused-appellant had with her on many occasions. it is not a case where she was put in physical restraint with the result that her movement was restricted and she could not get the opportunity to complain that accused-appellant had forcible intercourse with her.14. p.w. 12, dr. parbati kumari nag, has stated that on 7-9-96 at about 11.45 a.m. she has examined the prosecutrix who was pregnant near about 28 weeks of gestational age and that she was aged more than 18 years at the time of the examination. the statement of the age given by p.w. 1 in her deposition as well as the medical evidence establish beyond doubt that she was aged about 18-19 years at the time of sexual assault/intercourse with accused-appellant. where the prosecutrix is aged more than 16 years at the time of commission of offence and gives consent for sexual intercourse the offence under section 376, i.p.c. is not made out.15. it is true that prosecutrix by the time of her evidence in court gave birth to a child. she stated that the accused-appellant is the father of the child. the evidence of the prosecutrix is that accused-appellant had procured her consent by telling/assuring that he would marry her and believing on the same she had submitted to sexual intercourse with him. it has been urged on behalf of learned a.p.p. that consent of the girl was procured on false promise made by the accused-appellant to marry her was not a free or voluntary consent. as such the conviction of the accused-appellant is liable for the offence under section 376, i.p.c. even if the accused-appellant had made false promise to marry her and whereupon she had consented to sexual intercourse with him, it would not vitiate her consent for the sexual intercourse which she had given fully understanding the nature and implication of the act involved therein. it is not that the girl consented to the act on any understanding or misunderstanding that the accused-appellant was her husband (as distinct from 'would-be' husband). it is not a case where the girl had any misconception about the nature of the act which she consented. in the instant case, the prosecutrix fully knew that what they were going to commit was the act of sexual intercourse. that being so, it does not become a case of rape when she consented to the act of sexual intercourse fully knowing the nature and implication of such act and when she was fully aware that the person concerned was not yet her husband, even if he had proposed to marry her. this proposition gets support from division bench decision of the calcutta high court reported in 1984 cri lj 1535 (supra), another decision of the calcutta high court reported in 1999 cri lj 4482 (db) - (sudhamay nath alias bachchu v. state of west bengal) and a decision of this court reported in 1990 (2) pat ljr 375 (supra).16. the prosecutrix, her parents and p.ws. 3 to 6 have stated that from the panchayat accused-appellant had taken her to his home and after some days she was driven out. the question whether there has been a breach of contract to marry is a totally different matter with which one is not concerned in deciding whether a criminal charge of rape under2 section 376, i.p.c. has been established. the conduct of the accused-appellant in betraying the prosecutrix after making her pregnant and leaving the son abandoned, no doubt is highly reprehensible, yet with anguish it must be held that such conduct by itself does not become a ground for holding the accused-appellant guilty of the charge of rape under section 376, i.p.c. if so advised, she may seek her redress for other reliefs available under the law including the maintenance of the child begotten by the appellant which does not fall within the domain of the present proceeding.17. in view of the discussions made above, it has to be held that the accused-appellant is not guilty of the charge under section 376, i.p.c.18. in the result, the criminal appeal is allowed. the accused-appellant is acquitted of the charge under section 376, i.p.c. the impugned orders of conviction and sentence passed on him by the trial court are hereby set aside. he is directed to be set at liberty, forthwith, unless liable to be detained in any other case(s).

Judgment:

1. This appeal, at the behest of the sole appellant Baldhari Ohdar is directed against the judgment and order dated 23-5-98 in S.T.No. 280/96 passed by Sri Tarkeshwar Prasad, the then Sessions Judge, Gumla whereby and whereunder the appellant has been convicted under Section 376, IPC and sentenced to undergo RI for ten years.

2. The case came to be instituted and investigated on the basis of a Complaint Petition No. C. 135/96 (Ext. 1/1) filed by Asthami Kumari, the prosecutrix (P.W. 1) in the Court of C.J.M., Gumla on 23-8-1996.

Briefly stated, the prosecution case is as under :

In the month of February 1996, on Wednesday, at about 8 p.m. the prosecutrix was returning alone after witnessing dance-song programme in her busti at village Ramdih, within P.S. Basia, District Gumla, when the sole accused-appellant, her co-villager, way-laid and over-powered her and took her to a solitary place and sexually assaulted her against her will. She wanted to raise alarm but she desisted when he gave an assurance to marry her and counselled her not to disclose this fact to any one else. Thereafter he had sexual intercourse with her on many occasions and she carried his 5-6 months pregnancy and when her parents came to know about it sometime in the month of August 1996, a panchayati was conveyed in the village in which the accused-appellant confessed his guilt and took her away from the panchayat as his wife. He kept her for sometime at his home but on 21-8-96 he assaulted and threatened her saying that he would not marry her. Ultimately, on 23-8-96 she lodged a complaint petition, which was drafted by P.W. 11, Rameshwar Sahu, an Advocate, which was forwarded under Section 156(3) of the Code of Criminal Procedure by the Court of C.J.M., Gumla for institution and investigation of the case.

On its basis, the present police case was instituted on 2-9-96, the formal F.I.R. (Ex. 3) was drawn up, P.W. 10-A Radheshyam Tiwari, the then Officer-in-charge, Basia P.S., commenced investigation, visited the spot, sent her for medical examination and on completion of investigation charge-sheet was laid in Court against the accused-appellant.

3. The case was, ultimately, committed to the Court of Session by C.J.M., Gumla on 3-12-96.

4. The main defence is of innocence, bare denial of the involvement of the accused-appellant in the occurrence and of false implication.

5. In support of its case the prosecution examined 13 witnesses. Out of them P.W. 7 Purander Ohdar, P.W. 8 Phulchand Ohdar, P.W. 9 Baraik Rameshwar Singh and P.W. 10 Kameshwar Ohdar are tendered witnesses. The other P.Ws. are: P.W. 1 Asthami Kumari, the prosecutrix herself, P.W. 2 Basanti Devi, her mother, P.W. 3 Musku Nayak, P.W. 4 Somru Nayak and P.W. 5 Willium Bage are witnesses on the holding of Panchayat, P.W. 10-A Radheshyam Tiwari, the Investigating Officer, P.W. 11 Rameshwar Sahu, who had drafted the complaint petition (Ext. 1/1), P.W. 12 Dr. Parbati Kumari Nag who medically examined the prosecutrix on 7-9-96 and P.W. 13 Mani Nath Nayak, the father of the prosecutrix.

6. The defence, on the other hand, examined no witnesses.

7. On consideration of the evidence and materials on record and mainly relying on the testimony of the prosecutrix (P.W. 1), P.Ws. 3 to 6 as well as the medical evidence the trial Court held the accused-appellant guilty of the charge under Section 376, IPC and convicted and sentenced him, as stated above.

7A. While assailing the impugned conviction, Mr. A.K. Chaturvedi, learned counsel for the appellant, has urged that medical evidence itself as well as the age stated by the prosecutrix at the time of recording of her evidence on 29-1-97 shows that she was aged about 18 years at the time of the alleged occurrence and the facts and circumstances of the case suggest that she was a consenting party to the sexual intercourse with the accused-appellant and even if it be assumed that she gave consent for sexual intercourse on account of false promise of marriage made by the accused-appellant no offence under Section 376, IPC is made out, and in support of his contention he has cited the decision of this Court reported in 1990 (2) Pat LJR 375 (Mirwali Mohd. alias Kalu v. State of Bihar, O.P.) and a Division Bench authority of Calcutta High Court reported in 1984 Cri LJ 1535 (Jayanti Rani Panda v. State of West Bengal, O. P.). He further submitted that conviction of the accused-appellant under Section 376, I.P.C. is bad in law and cannot be sustained.

8. Mr. N.N. Mahto, learned A.P.P. appearing for the State, on the other hand, has supported the impugned judgment.

9. The point that arises for consideration is whether the conviction of accused-appellant under Section 376, I.P.C. can be sustained.

10. At this juncture, it may be stated that now it is well settled that the conviction can be based on the testimony of victim(s) of sexual assault alone unless the same is shown to be infirm and not trustworthy. The evidence of victim(s) of sexual assault stands at par with the evidence of an independent witness, but where there is reason(s) and suspicious circumstances, and it is difficult to place implicit reliance on the testimony of the victim(s) of sexual assault, the Court may look for independent corroboration of testimony of such witness for sustaining conviction on the charge of rape. The testimony of victim of sexual assault is vital.

11. Keeping this cardinal principle in mind one may now proceed to discuss the evidence of the prosecutrix (P.W. 1).

12. Asthami Kumari, the prosecutrix, has testified to the effect in the chief-examination that in the month of Chait (some time in the month of March) on one Wednesday in 1996, around 8 p.m., while after witnessing dance-song programme she was returning alone, on the way, the accused-appellant, her co-villager, caught hold of her, took her near a tree, laid and sexually assaulted her. She has further stated that she could not raise alarm as he closed her mouth and threatened to kill her with bhujali and forbade from disclosing this fact by threatening her with dire consequences and the accused-appellant promised to marry her and in the absence of her parents he often visited her house and sexually assaulted her on promise to marry her. She has further stated that as a result of the sexual assault(s) she carried the pregnancy of the accused-appellant whereafter she disclosed the entire episode to her mother (P.W. 2), when she enquired about it and ultimately the villagers knew about it and when she requested the accused-appellant to marry her he refused and thereafter a panchayati was held in which the accused-appellant caught her hand and forcibly took her to his home but he fled from his home leaving behind her and she stayed at his home for 8 days and was ultimately, driven out by his parents. Her evidence was recorded on 21-9-97 and at that time she stated her age to be 20 years. She has admitted in her cross-examination that on the night of the occurrence she remained with the accused throughout the night and on the next morning at about 7 a.m. she had returned home. Her evidence itself shows that she did not narrate the incident to her parents even on the next day or on any other occasion that accused-appellant had sexually assaulted her on that night or on subsequent occasions until the pregnancy she was carrying had become prominent and that too in the month of July when her mother enquired about it. Her mother (P.W. 2) has stated that her daughter (P.W. 1) had for the first time, disclosed to her about the sexual assault made by the accused on her after six months in the month of Asadh. She did not even search her when she had returned next morning and not in the night when she had gone out of the house to witness the dance-song programme.

13. P.W. 13, Mani Nath Nayak, the father of the prosecutrix has stated that in the month of Shravan he could know from his wife (P.W. 2) and daughter that the accused-appellant had sex with his daughter (P.W. 1) on the allurement to marry her. The prosecutrix has not alleged in the complaint petition/F.I.R. that at the time of sexual assault on the first occasion the accused-appellant had threatened her with bhujali or with dire consequences. The gist of the allegation in the complaint petition is that she had succumbed to the sexual assault(s) made by accused-appellant on the allurement given that he would marry her. Thus, she has made a development at the trial that she had been ravished by the accused-appellant on the first occasion on the point of bhujali and under threat of dire consequences. The conduct of the prosecutrix in not raising hue and cry at the time of sexual assault(s), that she permitted the accused-appellant who often had sex with her at her house in absence of her parents and that she did not disclose about it to her parents until the pregnancy in advance stage was detected, in the setting of the facts and circumstances of the case, indicates that she was a consenting party to the sexual intercourse which the accused-appellant had with her on many occasions. It is not a case where she was put in physical restraint with the result that her movement was restricted and she could not get the opportunity to complain that accused-appellant had forcible intercourse with her.

14. P.W. 12, Dr. Parbati Kumari Nag, has stated that on 7-9-96 at about 11.45 a.m. she has examined the prosecutrix who was pregnant near about 28 weeks of gestational age and that she was aged more than 18 years at the time of the examination. The statement of the age given by P.W. 1 in her deposition as well as the medical evidence establish beyond doubt that she was aged about 18-19 years at the time of sexual assault/intercourse with accused-appellant. Where the prosecutrix is aged more than 16 years at the time of commission of offence and gives consent for sexual intercourse the offence under Section 376, I.P.C. is not made out.

15. It is true that prosecutrix by the time of her evidence in Court gave birth to a child. She stated that the accused-appellant is the father of the child. The evidence of the prosecutrix is that accused-appellant had procured her consent by telling/assuring that he would marry her and believing on the same she had submitted to sexual intercourse with him. It has been urged on behalf of learned A.P.P. that consent of the girl was procured on false promise made by the accused-appellant to marry her was not a free or voluntary consent. As such the conviction of the accused-appellant is liable for the offence under Section 376, I.P.C. Even if the accused-appellant had made false promise to marry her and whereupon she had consented to sexual intercourse with him, it would not vitiate her consent for the sexual intercourse which she had given fully understanding the nature and implication of the act involved therein. It is not that the girl consented to the act on any understanding or misunderstanding that the accused-appellant was her husband (as distinct from 'would-be' husband). It is not a case where the girl had any misconception about the nature of the act which she consented. In the instant case, the prosecutrix fully knew that what they were going to commit was the act of sexual intercourse. That being so, it does not become a case of rape when she consented to the act of sexual intercourse fully knowing the nature and implication of such act and when she was fully aware that the person concerned was not yet her husband, even if he had proposed to marry her. This proposition gets support from Division Bench decision of the Calcutta High Court reported in 1984 Cri LJ 1535 (supra), another decision of the Calcutta High Court reported in 1999 Cri LJ 4482 (DB) - (Sudhamay Nath alias Bachchu v. State of West Bengal) and a decision of this Court reported in 1990 (2) Pat LJR 375 (Supra).

16. The prosecutrix, her parents and P.Ws. 3 to 6 have stated that from the panchayat accused-appellant had taken her to his home and after some days she was driven out. The question whether there has been a breach of contract to marry is a totally different matter with which one is not concerned in deciding whether a criminal charge of rape under2 Section 376, I.P.C. has been established. The conduct of the accused-appellant in betraying the prosecutrix after making her pregnant and leaving the son abandoned, no doubt is highly reprehensible, yet with anguish it must be held that such conduct by itself does not become a ground for holding the accused-appellant guilty of the charge of rape under Section 376, I.P.C. If so advised, she may seek her redress for other reliefs available under the law including the maintenance of the child begotten by the appellant which does not fall within the domain of the present proceeding.

17. In view of the discussions made above, it has to be held that the accused-appellant is not guilty of the charge under Section 376, I.P.C.

18. In the result, the criminal appeal is allowed. The accused-appellant is acquitted of the charge under Section 376, I.P.C. The impugned orders of conviction and sentence passed on him by the trial Court are hereby set aside. He is directed to be set at liberty, forthwith, unless liable to be detained in any other case(s).