Decided on October 23,2013



Barin Ghosh, C.J. - (1.) IN the First Information Report lodged by the father of the victim, it was alleged that the victim has been raped by the respondent by putting fear of death of her parents in her. It was also alleged that at the time when she was raped, she was less than 16 years old. The First Information Report resulted in filing of a charge sheet for offences punishable under Sections 376 and 506 of the Indian Penal Code. Charge was, accordingly, framed and by the judgment under Appeal, the Court below has held that the prosecution has failed to put home the charge against the respondent. Aggrieved thereby, an Application (SPLA No. 41 of 2013) for leave to prefer Appeal has been filed along with an Application (CRMA No. 1473 of 2013) for condonation of delay, to which an objection has been filed. We have considered the averments made in the Application for condonation of delay and found that apart from usual statements, there is nothing to suggest the reason for 157 days' delay in preferring the Appeal. It appears that the real reason for the delay was the Government red -tapism and movement of file from one table to the other. We have considered the objection. Reluctantly, however, we are allowing the Application (CRMA No. 1473 of 2013) for condonation of delay taking into account that the Government in the instant case is representing the society at large. Considered the Application for grant of special leave to prefer Appeal.
(2.) ACCORDING to the prosecution case, in between the months of September and October, 2003, respondent, an employee of the Indian Army, came to spend his leaves at his residence and, during that period, raped the victim on three occasions. The victim got pregnant. In relation to the pregnancy, a Panchayat was held on 3rd Mach, 2004. According to the prosecution, no decision was taken in the Panchayat and, in the Panchayat, respondent did not appear, instead his parents appeared and they held out, "whatever you want to do you may do." The First Information Report was filed on 17 April, 2004. Though the victim studied upto Class -V in the Primary School, prosecution did not produce the register of the Primary School containing the date of birth of the victim registered therein. Prosecution produced as witness the Gram Pradhan of the village, who deposed that the date of birth of the victim has been recorded in the Family Register of the family of the victim. Prosecution did not produce the Family Register. Father of the victim, while giving evidence, stated that, at the time of incident, the age of the victim was 16 years. The prosecution produced doctors, who tried to ascertain, by medical examination, the age of the victim. The doctors held out that the age of the victim was between 14 years to 17 years. In cross -examination, the doctors gave an impression that the age of the victim at the time of examination was less than 17 years. The prosecution, therefore, deliberately suppressed material evidence pertaining to the age of the victim from the Court. The evidence that was brought by the prosecution before the Court pertaining to age of the victim was such that the same could not conclusively prove that, at the time of incident, the age of the victim was less than 16 years. Therefore, the question was, whether the rape, in the instant case, was without consent or with consent, but by putting fear of death of the parents of the victim into the victim? According to the victim, three times she was raped by the accused, first time, when she was taking bath in the water -tank. According to her, she was standing while having intercourse. At that time, it was held out to her that if she discloses the incident, her parents will be done away with. The second time, the incident took place in the house of the victim, when, also, similar threat was held out to her. Third time she was raped almost in a public place by the side of a bush situate close to the road leading to the house of the victim from the flour -mill. This time too, similar threat was meted out. The prosecution accepted the fact that after the leave of the accused was over, he left the village in the month of October, 2003. The victim did not disclose, even thereafter, that she has been subjected to rape by the accused. She named the accused for the first time when her pregnancy became visible. Matter was taken to Panchayat, where no resolution could be arrived at. However, the accused held out that he will bear the cost of marriage as well as delivery of the child, appears to be the case of the prosecution. In that background, the Court below has refused to accept the contention of the prosecution that consent of the victim was obtained by the accused by putting fear of death of the parents of the victim in the victim. Under Section 114A of the Evidence Act, 1872, there is a presumption pertaining to intercourse without consent when the victim states so in her evidence. In the instant case, there is no dispute that in her evidence, the victim had asserted that the intercourse was without her consent. Any presumption is rebuttable. Under Section 313 of the Code, while the accused denied having raped the victim, he asserted to the extent that if DNA test is done of the offspring and if the offspring is linked to him, he will marry the victim. In other words, he threw a challenge that the offspring has not been begotten by him. The victim and the prosecution did not accept this challenge. Presumption, therefore, would be that this challenge was not accepted knowing fully well that the result thereof would be devastating. In the circumstances, the Court below has refused to accept the version of the prosecution as was put before it. There appears to be no scope of improvement. In the grounds of Appeal, there is not even a single whisper that the appellant is agreeable to have DNA test of the accused and the offspring done. The fact remains that the victim, in her deposition, has stated that she had begotten a male child and that the male child is now living in an Ashram situate at Haridwar. We think that by preferring this Appeal, appellant has, in fact, purported to cause further harm to the society and, accordingly, while we would not grant leave to prefer Appeal to the appellant, we will take such measures so that, in future, these Appeals are not filed. Therefore, we direct the learned counsel for the appellant to send a copy of this order to the Law Department of the State with a reminder that, in future, if these Appeals are filed, the Court will be constrained to impose exemplary costs on the State. Application for special leave to prefer Appeal is dismissed. Consequentially, Government Appeal is also dismissed.;

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