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2018 Supreme(Pat) 167
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Sk. Mintu, son of Sk. Hasmullah – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (SJ) No.204 of 2015
Decided On : 29-01-2018
For the Appellant :Mr. Ram Adya Singh-Advocate
For the Respondent: Mr. Sujit Kumar Singh-A.P.P.
The main legal point established in the judgment is the applicability of Section 376 of the IPC in cases involving sexual exploitation under the pretext of marriage, and the consideration of personal law and consent in determining the offence.
Headnote:
Section 376 - Rape - IPC - [Section 376 of the IPC] - The court found the appellant guilty under Section 376 of the IPC for engaging in a sexual relationship with a minor girl under the pretext of marriage, resulting in her pregnancy. The court discussed the applicability of personal law and consent in the context of the offence, and upheld the conviction based on the evidence presented.
Fact of the Case:
The appellant was found guilty under Section 376 of the IPC for engaging in a sexual relationship with a minor girl under the pretext of marriage, resulting in her pregnancy. The victim's fard-bayan revealed that she was exploited by the appellant, who delayed marriage and eventually declined, threatening her. The defense denied the allegations, citing prior marriage and false implication motives.
Finding of the Court:
The court found the appellant guilty under Section 376 of the IPC based on the victim's testimony, medical evidence, and lack of denial of the relationship by the appellant. The court rejected the defense's arguments regarding personal law and consent, upholding the conviction.
Issues: The issues revolved around the appellant's alleged exploitation of the victim under the pretext of marriage, the applicability of personal law, and the presence of consent in the context of the offence.
Ratio Decidendi: The court considered the victim's testimony, medical evidence, and the absence of denial by the appellant as crucial factors in upholding the conviction under Section 376 of the IPC. The court also discussed the applicability of personal law and consent in the context of the offence.
Final Decision: The appeal was dismissed, and the appellant's bail bond was cancelled with a direction to surrender before the lower court to serve the remaining sentence.
Sole appellant Sheikh Mintu has been found guilty for an offence punishable under Section 376 of the I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo S.I. for three months, additionally vide judgment of conviction dated 17.03.2015 and order of sentence dated 23.03.2015 passed by the 3rd Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No.302 of 2012.
2. Name withheld, informant (PW-2) gave her fard-bayan on 07.03.2011 disclosing therein that she happens to be aged about 16 years. For the last one year on the pretext of marriage, her co-villager Sheikh Mintu has indulged with her in sexual relationship as a result of which, she became pregnant. Whenever, she insisted upon for marriage, he delayed the same on one pretext or the other and now, he has declined. Side by side, is also threatening. Villagers are well conversant with the aforesaid affair.
3. After registration of Sathi P.S. Case No.20 of 2011, investigation commenced and concluded in a manner, subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that appellant got married with Aasma Khatoon daughter of Sheikh Mushar much prior to the alleged date and time of occurrence that means to say on 29.12.2009 and that being so, the assertion of the informant that on the pretext of marriage, she had been exploited at the end of appellant, did not justify. Furthermore, it has also been pleaded that the motive for false implication is at the instance of Kaisar as well as Sheikh Reyaz, under whom father of informant happens to be labourer, who were prosecuted for committing rape over sister of the appellant and the same has been confirmed up-till the High Court. In order to substantiate the same, apart from examination of DW-1, Nikahnama as well as judgment of the High Court passed in Cr. Appeal (S.J.) No.557 of 2009 dated 05.08.2013 have also been made an exhibit.
5. In order to substantiate its case, prosecution had examined altogether eight PWs, who are PW-1, Sobratan Khatoon, mother of the victim, PW-2, named withheld, victim herself, PW-3, Abdul Hasan, brother of the victim, PW-4, Kamal Kishore Singh, PW-5, Raja Hussain, PW-6, Nagendra Paswan, PW-7, Md. Raunak and PW-8, Dr. Rashmi Nandkeolyar while two witnesses have been examined as Court witness viz. CW-1, Ainul Haque, father of the victim and CW-2, Ibrar Hussain, an employee of Health Department, who had produced the relevant register of Chanpatia P.H.C. where victim was examined during course of delivery. Side by side, had also exhibited viz. Exhibit-1, F.I.R., Exhibit-1/1, endorsement over written report, Exhibit-2, medical report, Exhibit-3, patient admission register of Chanpatia P.H.C. In likewise manner, defence had also examined one DW, DW-1 Md. Kabir Ahmad as well as also exhibited Nikahnama as Exhibit-A, judgment dated 05.08.2013 passed in Cr. Appeal (S.J.) No.557 of 2009 as Exhibit-B.
6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of learned counsel for the appellant that from the deposition of DW-1 in consonance with Exhibit-A, it is evident that appellant got himself married in the Year 2009 and on account thereof, there happens to be no occasion for him nor to the prosecution party to negotiate and further, develop intimacy in the background which later on extended upto physical relationship as a result of which, victim became pregnant. That being so, the very foundation of the prosecution case is found completely shattered. In its continuity, it has also been submitted that, that happens to be reason behind that no effort was taken at the end of the prosecution to have the D.N.A. Test of the child matched with the D.N.A. of the appellant and so, the prosecution knowingly, intentionally withheld
