Manowwar Alam @ Manowar Alam @ ... vs The State Of Bihar
2021 Latest Caselaw 3216 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.228 of 2019

  Arising Out of PS. Case No.-465 Year-2011 Thana- KISHANGANJ District- Kishanganj
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Manowwar Alam @ Manowar Alam @ Guddu, Son of Md. Faruque Alam alias Faruque, Resident of Village Dhanpura, P.S. Kochadhaman, District Kishanganj ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Ashok Kumar, Advocate Mr. Ram Prawesh Kumar, Advocate For the Respondent/s : Mr. Zeyaul Hoda, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date :09-07-2021

The sole appellant-Manowwar Alam @ Manowar

Alam @ Guddu has challenged the judgment of conviction

dated 16.05.2018 and order of sentence dated 19.05.2018 passed

in Sessions Trial No. 442 of 2015 corresponding to C.I.S. No.

257 of 2015 arising out of Kishanganj P.S. Case No. 465 of

2011. The appellant was found guilty for offences under

Sections 376, 366(A) and 372 of the Indian Penal Code and

rigorous imprisonment of ten years along with fine of rupees

twenty thousand was awarded for each of the above referred

offences. In default of payment of fine, one year rigorous

imprisonment was ordered. The sentences of imprisonment are

to run concurrently.

Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

2. The prosecution case as disclosed in the written

report dated 17.11.2011 lodged with Kishanganj Police Station

by Mr. Jasimuddin (P.W.2) is that his minor daughter, aged

about fifteen years, was a student of Class-IX. On 09.11.2011,

she had gone to take tuition as usual but she did not return in the

evening and after hectic search, her whereabout could not be

traced. Hence, a report was submitted to the police station on

11.11.2011. Later on, the informant came to know that the

appellant resident of village Dhanpura had induced her to go

with him. A mobile call came from the victim who reported that

Guddu had handed over to her to one Mukhtar and Mukhtar

forcefully married with her and established physical relation

with her. Mukhtar was in Chandigarh. She further disclosed that

on promise of marriage, Guddu boarded her on train and got her

married with Mukhtar. The informant suspected that the victim

has been thrown into flesh trade. The written report is Ext. 1.

3. On recovery, the victim was medically examined

on 03.12.2011 and her statement under Section 164 Cr.P.C. was

recorded on 07.12.2011. In her statement under Section 164

Cr.P.C., the victim-girl disclosed that three months back, she had

come to the house of her uncle (Khala). In the market, Md.

Guddu @ Manowwar Hussain (appellant) met her. Thereafter,

the appellant used to meet her off and on and stated that he is an Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

Advocate Clerk in the Court. Appellant further expressed that he

loves her and promised to marry with her. The appellant

provided her a mobile phone and used to talk with her on mobile

phone. On 09.11.2011, appellant took her to Islampur on a bus.

At Islampur, another Guddu met. Thereafter, the three took meal

in a hotel and the appellant took her to his village Dhanpura

where father of the appellant was also there. The father asked

the appellant to take her to the house of her uncle. Then the

appellant took her to the house of his uncle. In the night, the

appellant was in physical relation with her. Thereafter, the

appellant with the help of Irfan got two new suits for the victim

and took her to Pachim Pali. Again, the second "Guddu"

accompanied her and took her to Kishanganj railway station and

from there they boarded Mahananda express for Delhi and from

Delhi to Chandigarh. At Chandigarh, they reached at the house

of Babalu. Babalu had three wives and all were engaged in

prostitution. One Sahnaz, a girl disclosed to the victim that on

the pretext of love, the victim was brought there for flesh trade.

Thereafter, anyhow, the victim escaped to the house of her

cousin Amir who was in Chandigarh itself.

4. After investigation, the police submitted charge-

sheet and the appellant was put on trial which resulted in

conviction as stated above. Hence, this appeal. Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

5. Mr. Ram Pravesh Kumar, learned counsel for the

appellant submits that there is unexplained delay of about one

week in lodging the FIR. The victim had lodged a case under

Section 498(A) of the Indian Penal Code after marriage with the

appellant. Hence, she was married wife of the appellant. In the

circumstance, the offenes for which charges have been framed

are not attracted. The father of the appellant had executed a

registered sale deed transferring his ten Kathas of land in favour

of the victim on 17.12.2011 vide Ext. A. The victim was

recovered from her own house on 02.12.2011. Hence, the

allegation of kidnapping etc. appears to be palpably false when

matrimonial discord started, the false case was lodged just to

pressurize.

6. To contra, Mr. Zeyaul Hoda, learned Additional

Public Prosecutor contends that the victim-girl as P.W.3 has

consistently supported the aforesaid allegation against the

appellant and she has specifically stated that marriage with the

appellant, subsequent to the offence, was a sear fraud as the

appellant never remained in matrimonial relationship. Moreover,

the act of transfer of ten Kathas of land was also a fraudulent act

as the said land was already sold to someoneles and just to save

the skin from the present criminal case, those transactions were

brought on the record.

Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

7. P.W. 1 Gulakha Khatoon, the mother of the

victim-girl has supported the prosecution case as hearsay

witness, what was disclosed to her by her daughter.

P.W. 2 Jasimuddin is father of the

prosecutrix and informant of the case. He has supported his

statement in the first written report

P.W. 4 Dr. Urmila Kumari and P.W. 5 Dr.

Rafat Hussain were members of the Medical Board, who had

examined the victim. They noticed hymen of the victim

ruptured.

Since the victim was examined on

03.12.2011 much after the date of offence, hence, the finding of

the Doctor that vaginal swab did not show any spermatozoa was

obvious. The Doctor's Team assessed the age of the prosecutrix

between fifteen to seventeen years.

P.W. 6 Muzaffar Hussain and P.W. 8

Rafique Alam are hostile witnesses.

P.W. 7 Surya Deo Dubey and P.W. 9 Madan

Gopal are Investigating Officer of the case. They have supported

the investigation done by them.

P.W. 9 had collected the school document of

the victim in support of her date of birth wherein date of birth of

the victim is entered as 01.01.1999.

Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

P.W. 9 is specific that he had collected

school certificate of the victim wherein her date of birth is

entered as 01.01.1999. The said document is available with the

case diary. There is no suggestion to any of the prosecution

witnesses that the witnesses have not deposed correctly about

the date of birth of the prosecutrix or that the said school

document is not a genuine document.

Since the prosecution has brought on the

record the best document in support of date of birth of the

victim, hence, it is established that on the date of occurrence, the

victim was a minor i.e. of age incapable of giving consent.

8. The defence examined D.W. 1 Farid Alam, who

is a witness of formal nature and has proved the sale deed

executed by the father of the appellant in favour of the victim-

girl on 17.12.2011 vide Ext. A.

D.W. 2 Gulam Sarwar had deposed that the

victim and one Saddam Hussain were wandering together in the

public place and the police took them to the police station. The

police report is marked as Ext. B. Ext. B is a document dated

06.06.2015 submitted by the Officer-in-Charge of Mahila Police

Station wherein it is mentioned that the victim and Md. Saddam

were noticed together on 08.01.2015. Both were taken to the

police station and both disclosed that they were meeting with Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

each other since long as both were in love with each other. This

act of the victim is a subsequent act of years after the alleged

crime committed against her. Hence, it has no adverse effect on

the crime alleged nor the subsequent act of the victim is any

offence in the eyes of law.

9. P.W. 3 the victim-girl, examined on 19.10.2016,

stated her age as twenty years and disclosed that the occurrence

took place five years and two months back at about 09:00 a.m.

She was going to Girls High School at Khagra Karbala to take

tuition. There appellant Guddu met her and said that he is an

Advocate Clerk in Kishanganj Court and thereafter he stared

talking with her and pretended for marriage. On the date of

occurrence, on inducement of Guddu, she along with Guddu,

took a bus for Islampur. At Islampur, friend of the appellant

(another Guddu) met them. All took their meal in a hotel. Then

the appellant took her to his house, locked her in a room. When

the father of the appellant protested, the appellant took her to the

house of his uncle in village Dhanushna and there forcefully

ravished her. In the next morning, the appellant telephonically

called to his maternal uncle Irfan along with two new suits for

the victim and then they proceeded for Pachim Pali where

another Guddu met them. The appellant asked her to go along

with another Guddu of Islampur and promised that as soon as he Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

would get money, he would marry with the victim. Thereafter

Guddu of Islampur took her to Chandigarh by train. At

Chandigarh, Mukhtar, Sahnaz, Babalu were there. Babalu had

three wives. Sahnaz disclosed to the victim that the victim has

been trapped as the place was a brothel. The victim was further

informed that she has already been sold away. For three to four

days the victim was at Chandigarh. Thereafter, she phoned to

her father. Then her cousin with the help of police took her out.

Thereafter, she has described about her medical examination

and statement before the Magistrate under Section 164 Cr.P.C.

In the cross-examination, she stated that after the occurrence,

the appellant married with her on the pressure of people. Father

of the appellant executed a registered sale deed in respect of ten

Kathas of his land in favour of the victim which was a sham

transaction as the said land was already sold to someone else.

The appellant never remained with the victim after marriage.

P.W. 2 has also said that after return from Chandigarh, the local

MLA and others forcefully got the victim married with the

appellant.

10. There is no cross-examination to these

witnesses i.e. P.W. 2 and P.W. 3 or to any of the prosecution

witness to disbelieve what they have stated in their examination-

in-chief.

Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

11. It is well settled by a catena of judicial

pronouncements that while appreciating the evidence of the

victim of sexual assault, it should be treated on a par with the

evidence of an injured witness. The reason is simple that a girl

or a woman in the traditional bound non-permissive society of

India would be extremely reluctant even to admit that any

incident which is likely to reflect on her chastity had ever

occurred. She would be conscious of the danger of being

ostracized by the society. When, in face of these factors, the

crime is brought to light, there is inbuilt assurance that the

charge is genuine rather than fabricated. In normal course, the

Indian woman has tendency to conceal such offence even before

her family members much less before public or before the

police. Therefore, testimony of the prosecutrix to some extent,

stands on higher pedestral than that of an injured witness.

Corroboration is not an imperative component

of judicial credence in every case of rape. Refusal to act on the

testimony of the victim of sexual assault, in absence of

corroboration as a rule, is adding insults to the injury. If totality

of the circumstances appearing on the record of the case

discloses that the prosecutrix does not have strong motive to

falsely implicate the person charged, the Court should ordinarily

have no hesitation in accepting her evidence as no self- Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

respecting women would come forward to make a self

humiliating statement in casual manner. Reference may be made

to State of Punjab Vs. Gurmit Singh and Ors. reported in

(1996)2 SCC 384 and Motilal Vs. State of M.P. reported in

(2008)11 SCC 20.

At the same time, in Raju & Ors. Vs. State of

Madhya Pradesh reported in (2008)15 SCC 133, the Hon'ble

Supreme Court cautioned by saying that no doubt, rape causes

greater distress and humiliation to the victim, but at the same

time a false allegation of rape can cause equal distress,

humiliation and damage to the accused as well. Therefore, the

accused must also be protected against the possibility of false

implication. The Court should carefully see that the prosecutrix

is consistent in her statement right from the starting point till the

end, namely, at the time when the witness makes the initial

statement and ultimately before the Court. The prosecutrix

should be in a position to withstand the cross-examination of

any length and howsoever strenuous it may be and under no

circumstance should give room for any doubt as to the factum of

the occurrence, the person involved, as well as the sequence of

it. If other witnesses are there, there must be consistent match

with the version of every other witnesses. If the testimony of the

prosecutrix withstands the aforesaid test, she would be treated as Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

a "sterling witness" and no corroboration is needed to base the

conviction on the sole testimony of the prosecutrix. Reference

may be made to Rai Sandeep @ Deepu Vs. State (NCT of

Delhi) reported in (2012)8 SCC 21.

12. In the case on hand, the prosecutrix has

consistently supported what had happened with her as referred

above. There is no cross-examination to doubt the

trustworthiness of the prosecutrix or to have any inclining of

motive for false implication of the appellant. The medical

opinion is that hymen of the prosecutrix was ruptured and non-

finding of spermatozoa was natural as the victim was examined

much after the commission of the crime alleged. The prosecutrix

is specific that she got married with the appellant under pressure

of the people and that marriage was itself a fraud as appellant

never maintained the relationship. The land transferred in favour

of the victim was a sham transaction. The prosecution has

successfully proved that on the date of occurrence, the

prosecutrix was a minor. Hence, her consent and no consent was

immaterial. Since the victim was a minor below eighteen years

of age on the date of occurrence and she has claimed that she

was ravished against her will, the offence under Section 375 of

the Indian Penal Code stands proved against the appellant. The

prosecution evidence is that appellant intentionally had handed Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

over the victim to one Guddu who in turn carried her to

Chandigarh and put her in a place of prostitution. Hence, the

offence under Section 372 of the Indian Penal Code also stands

proved against the appellant. Likewise, the prosecution has

successfully proved the charge under Section 366(A) of the

Indian Penal Code as the victim a girl below eighteen years was

induced to leave her house knowingly that she would be forced

to illicit intercourse with another person.

13. On the basis of material on the record, I do not

find any merit in the submission of the learned counsel for the

appellant that the delay in lodging the first information report is

an unexplained delay or it has in any way caused prejudiced to

the appellants. The subsequent act of fictitious marriage or

institution of a case under Section 498(A) of the Indian Penal

Code would not minimize the effect of the present criminal act

committed earlier. The victim was not cross-examined on this

point at all nor any other prosecution witnesses were tested on

this point.

14. Since the learned trial Court has awarded

minimum punishment prescribed for offence under Section

376(2)(i) of the Indian Penal Code, hence, the sentence, under

Section 376 of the Indian Penal Code, requires no interference.

The learned trial Judge has awarded maximum punishment Patna High Court CR. APP (SJ) No.228 of 2019 dt.09-07-2021

prescribed for offence under Sections 366(A) and 372 of the

Indian Penal Code, however, the sentences have been ordered to

run concurrently. Hence, no prejudice is going to be caused to

the appellant. Accordingly, the Court declines to interfere with

the order of sentence.

15. In the result, I do not find any infirmity with

the judgment of the trial Court. Accordingly, this appeal stands

dismissed as devoid of any merit.

(Birendra Kumar, J)

Kundan/-

          AFR/NAFR                   NAFR
          CAV DATE                   29.06.2021
          Uploading Date             09.07.2021
          Transmission Date          09.07.2021