MANU/WB/0255/2020

IN THE HIGH COURT OF CALCUTTA

CRA No. 646 of 2014
Decided On: 14.02.2020
Appellants: Shib Shankar Kisku
Vs.
Respondent: State of West Bengal
Hon'ble Judges/Coram:
Sahidullah Munshi and Subhasis Dasgupta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Sarwar Jahan, Md. Ashraful Huq, Firoze Hassan
and Mousumi Mitra, Advs.
For Respondents/Defendant: Arun Kumar Maity, Ld. A.P.P. and Narayan Prasad
Agarwala, Adv.
JUDGMENT
Subhasis Dasgupta, J.
1 . This criminal appeal is against the order of conviction and sentence. Learned
Additional Sessions Judge, 2nd Court, Purulia, by his order of conviction dated
22.08.2014 and sentence dated 25.08.2014, in Sessions Trial No. 9 of 2010, arising
out of Sessions Case No. 34 of 2014, convicted the accused/appellant after holding
him guilty for offence under Section 376/448/506 (Part-1) of Indian Penal Code, and
sentenced him to suffer ten (10) years rigorous imprisonment with a fine of Rs.
5000/- (rupees five thousand), in default to suffer rigorous imprisonment of one (1)
year for the first count, and six (6) month for the offence under second count, and
one (1) year for the offence under third and last count. The established facts during
trial may be mentioned here for addressing the issue raised in this appeal most
effectively, which may be mentioned as hereinbelow.
2 . A tribal girl belonging to Santal community perusing her study in class VIII of a
school was physically violated by accused of tribal community living in the same
village on 7th Ashar 1415 B.S. corresponding i.e. 22.06.2008, getting her alone in
home during day time. The accused/appellant subjected the victim girl to threat on
repeated occasions while doing physical violation putting her in a fear of death. The
girl concealed her physical violation by accused to her parents in consequence of
threat of accused. The parents of the victim suddenly noticed physical changes of
victim daughter, when on being interrogated, the victim carrying then six (6) months
old pregnancy, narrated everything to her parents as to how her pregnancy was
brought about pointing out her finger towards the accused/appellant, as culprit of her
pregnancy. The bewildered parents sought for interference of their Majhi Samaj, what
is largely followed in the Santal Community for a local resolution of the dispute
cropped up in them with an effort for a discussion in salish so that there could be an
arrangement of marriage of their daughter. The accused/appellant remained absent
on two dates in the meeting. The de-facto complainant/father of the victim girl had to
obey the instruction/decision given by his fellow community members asking the

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 father to wait for few months, and upon completion of which the de-facto
complainant father was given free hands to take recourse to law. In the mean time,
the victim/prosecutrix had delivered a child. Irresistibly there was delay of about
seven (7) months thus caused in lodging the F.I.R.
3 . The defense version in simpliciter is that victim girl consented to the sexual act
performed on her mutually and voluntarily, as the victim girl was about twenty (20)
years of age at the relevant point of time. So, the sexual intercourse was held by
reason of conscious decision of the victim girl for her consent to the sexual acts
performed voluntarily.
4. The Trial court after framing charge under Section 376/448/506 I.P.C. against the
accused person proceeded to hold trial, and ultimately concluded the trial collecting
as many as sixteen (16) witnesses, out of which PW-1 is the victim herself, while
PW-2 and PW-4 are the parents of the victim girl, PW-3 to PW-5 are the aunt and
uncle respectively, PW-6 determined the potency of accused, PW-7 to PW-9 are the
co-villagers attending the salish convened for the purpose at the request of the PW-4
so that there could be an arrangement of marriage of the victim girl, PW-10 is doctor
examining the victim and measuring/calculating age of pregnancy of victim, PW-11 is
doctor performing Ossification Test for the determination of age of the accused, PW-
12 is Recording Officer, PW-13 is the scribe of F.I.R, PW-14 is doctor performing
Ossification Test for the determination of age of the victim, and PW-15 and PW-16
are the Investigating Officers in this case.
5. Learned advocate for the appellant principally focused his argument urging two (2)
submissions. Firstly; he strenuously made his submission that the age of the
prosecutrix was much above sixteen (16) years, when she already reached her age of
discretion and the victim/prosecutrix having reached to her age of discretion
consented to the alleged act of physical violation voluntarily, what had already been
admitted by the prosecutrix, claiming to have been violated on repeated occasions
i.e. as many as 5-6 times in her own house.
6. Secondly; he urged that when there had been inordinate delay in filing the F.I.R.,
there left sufficient space during the intervening period of delay to make exaggeration
or embellishment in the version of the prosecution story and for such inordinate
delay remaining unexplained, the conviction of appellant should not be sustained in
law, and liable to set aside.
7 . Raising such arguments, the learned advocate for the appellant proposed for
rendering the appellant's conviction to be bad in law, and setting aside the sentence
accordingly, which we feel inclined to address the points, raised hereinabove by the
discussion made hereinbelow.
8. The respondent/State challenged the appeal supporting the order of the Trial Court
taking recourse to the presumption contained under Section 114(A) of Evidence Act,
read with Section 90 of the Indian Penal Code. The respondent/State strongly
contended that the testimony of the prosecutrix denying to have consented to the
sexual acts not having been discredited in the cross-examination, the same would
stand, and the consent to the sexual acts was not a conscious decision of
prosecutrix/victim, and rather it was obtained by the accused/appellant putting the
victim in a fear of death.
9 . At the very threshold of this case, this is to be put on record that a tribal girl
pursuing her study in class VIII, came before the court alleging her physical

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 violation, by a person, who of course belonged to a tribal community, living in the
self-same village, wherein the victim/prosecutrix had her ordinary residence. Another
significant fact is that it is not a case of accused/appellant that the doctrine of
promiscuity would be attracted against the victim/prosecutrix for her promiscuous
behaviour, wherein the sexual intercourse was held upon the victim with a promise to
marriage.
10. In a tradition bound society, tribal people of Santal community observe some
peculiar social customs, which get automatically inculcated into such tribal girl
(victim girl), while facing upbringing in the family and thus strongly inducing her
(victim/prosecutrix) to follow the same in future. We cannot be oblivious of the fact
that still tribal people even after the progress of civilisation, since the day of our
independence, would prefer to settle their own disputes locally by the headman of
their community, when there is fear of being ostracised from their own community in
the event of showing any disrespect or causing any disobey to the decision reached
by the headman of their community.
11. The point now raised, needs to be addressed taking note of practice, precedent
and customs of such tribal community followed in the instant case, and the extent of
evidence adduced to that effect.
12. As regards the first point raised in this case, the appellant's stand was that victim
was a consenting party to the act of physical violation, and she was about twenty
year old, and thus, the pregnancy of the victim was the fall out of the consensual
sexual act performed mutually between the parties.
13. It goes without saying that victim (PW-1), graphically described in her cross-
examination the manner, when she was ravished forcibly, making it more strengthen
than what she had stated in her examination in chief. She stated that on 7th Ashar,
1415 B.S. corresponding to 22.06.2008, while she was alone in the veranda of her
house, at about 1-2 P.M. suddenly accused/appellant appeared in front of her veranda
of the house, touched her body and dragged her inside the room. The victim neither
had any previous acquaintance with the accused, nor any speaking/visiting terms
with the accused/appellant. The victim could see the accused in the village as a co-
villager, and nothing else. As soon as the accused/appellant touched her body, she
could discover the culpable intention of accused/appellant. After dragging the victim,
she was made undressed by accused, and then committed rape upon her providing no
scope to raise any voice against the act of physical violation committed upon her.
She consistently spoke in her cross-examination that she had been over powered by
the accused due to pressing her mouth so that she could not raise any voice. She
maintained her stand in evidence that the accused threatened her not to disclose the
incident to anybody, else he would finish her. She claimed to have been ravished
several times (5/6 times) by accused/appellant in her own house, and that too in day
time and all the times accused threatened her with dire consequence, and as a result
of which she could not narrate the incident to her parents till her pregnancy was
detected by her parents, manifested with changes of her physical appearance. Thus,
pregnancy of the victim girl was disclosed by victim girl to her parents when she was
carrying about six (6) months old pregnancy.
14. As regards the topography of the house, wherein the victim was subjected to
repeated physical violation by the accused/appellant, evidence is there, as revealed
from the cross-examination of witnesses (PW-1 to PW-5), that both parents of the
victim and uncle's family of the victim, reside in same bastu, sharing a common

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 courtyard, and at the relevant point of time, the main gate of the house of the victim
was closed, and when there was no family member available in the house of victim.
15. There was no cross-examination even in the form of putting suggestion of denial
that the family members of the uncle of victim had their enough occasion to remain
present at the relevant point of time in the house, and providing them sufficient
scope on their part to notice the accused/appellant visiting the house of victim on the
relevant dates, while she was alone.
16. The pregnancy of the victim demonstrated with her certain physical changes in
her appearance provided parents (PW-2 and PW-4) to know about such ill doings,
and on being interrogated, the victim disclosed for the first time about the cause of
her pregnancy, and it was brought about by whom. The victim explained to her
parents that having received threat of dire consequence all the times, she was made
to face physical violation by accused. She had received threat requiring her not to
disclose the same else, accused would finish her.
1 7 . Since in a case of rape the testimony of victim prosecutrix is of highest
significance, relying upon which there could be conviction without any corroboration,
provided the version of the testimony is otherwise acceptable, the accused/appellant
challenged to discredit the credibility of the version of victim referring her own
evidence, wherein she admitted to have been subjected to repeated physical
violations by accused, and that too in day time all the times in her own house, and
when the victim did not raise any voice, in spite of having sufficient opportunity there
at the moment, which according to appellant, would not have been possible, had
there not been any consent of victim girl.
18. Learned advocate for the appellant argued that since the victim was more than
twenty (20) year old girl at the relevant point of time, she voluntarily consented to
the sexual acts performed upon her, and did sex in an enjoying manner, and
subsequently preferred to conceal the same for a considerable period of time giving
sufficient indulgence to accused for her further physical violation in a repeated
manner. Adverting to the evidence of PW-4 (father of the victim), learned advocate
for the appellant argued that the father was aware of the sexual relationship of her
daughter with accused, as on the first date itself i.e. 7th Ashar 1415 B.S., the father
could know about the act of having committed physical violation forcibly upon his
daughter from his wife, after he had returned back to his house from the field.
According to appellant, despite knowing such incident with formidable impact of it,
nothing could be raised in expression of grievance, and rather ignored the same
giving scope to his daughter (victim) to continue and grow her sexual intimacy with
the accused. And thus, such inaction on the part of the father of victim till appearance
of pregnancy of her daughter was highly indicative of sexual intimacy of the victim
daughter with accused inconsequence of their mutual affairs at least with the
knowledge of parents of victim girl.
1 9 . The respondent/State controverting such argument raised by the appellant
submitted that accused managed to obtain submission of victim, a mere act of
helpless resignation in the face of inevitable compulsion by reason of the threat being
exerted upon the victim, which could not be construed to be conscious decision of
victim, while she was put to face physical violation on repeated occasions, and that
too getting her alone in her own home during day time.
20. Upon visualizing the evidence of PW-2 and PW-4 (who are parents of the victim),

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 PW-3 and PW-5 (the aunt and uncle of the victim) and PW-7, PW-8 and PW-9, (who
are witnesses attending the salish held over the issue), it appears that the family
members of the victim girl virtually noticed the physical changes of the victim girl in
the month of Agrahayan, when victim was carrying six (6) months old pregnancy, as
determined by PW-10 (doctor), and on being interrogated, the victim narrated the
cause of her pregnancy, and how it was brought about to her. Since, victim herself
did not disclose anything in her evidence providing her father to know about the
cause of her pregnancy, and further the mother of the victim not having disclosed
anything to her husband (PW-4), contrary to the statement of victim daughter, the
evidence of father of the victim (PW-4) ascertaining to have gathered knowledge on
the first day of incident would be without any credence in view of provisions
contained in Section 6 of the Evidence Act.
21. The parents of the victim girl in particular, the father of the victim girl having
known such incident after being disclosed by their daughter, was not prepared to take
it lightly without any action on his part. The father informed the headman of his
community to call for a village salish (meeting). PW-7 and PW-9 attended such salish
as members of such salish, PW-8 attended such salish being a headman of Majhi
Samaj (Santal Community). According to PW-7, 8 and 9, out of which, PW-9 was
then elected Panchayat member, on the two dates, scheduled for the purpose i.e. on
23rd and 24th Agrahayan 1415 B.S. the accused remained absent, and as a result no
decision could be reached, which was basically called for discussion, so that there
could be an arrangement of marriage of the victim girl. The father (PW-4) then had to
wait for few months after being requested by their community people, even after the
entire effort of calling for a salish proved to be a futile exercise.
22. Learned advocate for appellant in his conscious effort to establish a case with
positive consent against the allegation of commissioning physical violation, further
drew attention of the court to the evidence of PW-8 (headman of Majhi Samaj),
wherein the headman stated that meetings were called upon to state that a relation
was grown up between the victim and the accused/appellant. Referring such
evidence, learned advocate for the appellant persuaded us to believe that besides
consent sexual intimacy would not have made possible and upon appreciating the
same, the accused appellant ought not to have held convicted.
23. While submitting a case of consent in respect of the physical violation of victim,
learned advocate for the appellant incidentally focused upon the evidence of PW-14
(the doctor holding Ossification Test of the victim), wherein the doctor determined
the bone age of the victim to be above 18-20 years on 03.02.2009, and encashing
such piece of evidence, a very strong argument was raised that victim was much
above 18 year old on the date of incident after application of relaxation of two years
as per precedent. A further reference was drawn to the evidence of PW-4, wherein the
father of the victim made statement disclosing the present age of his victim daughter,
as 18 year old on the date of adducing evidence i.e. on 2nd August, 2010. Taking
support of the Ossification Test Report of the victim together with the testimony of
father of the victim disclosing the present age of the victim, a sincere effort was
made to establish that victim was at least above 16 year old on the date of incident,
when she had already reached her age of discretion so as to give her free consent to
the sexual act committed upon her mutually and voluntarily.
24. To embolden the stand of appellant, learned advocate for the appellant relying on
decisions; reported in MANU/SC/0031/1982 : 1982 SCC (2) 538, delivered in the
case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors.,

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 submitted that the ratio decided in that case was that for the determination of age of
a victim girl, one can take judicial notice that the margin of error in age ascertained
by radiological examination is two (2) years on either side, MANU/SC/7296/2008 :
(2008) 15 SCC 223, Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, submitted
that ratio decided in the case of Vishnu Vs. State of Maharashtra reported in
MANU/SC/2156/2005 : (2006) 1 SCC 283, propounding that the opinion of the
Medical Officer is to assist the court as he is not a witness of fact and the evidence
given by the Medical Officer is really of an advisory character and not binding on the
witness of fact, was reinforced in such case that the determination of age done
medically by the doctors should be given flexibility of two (2) years on either side,
MANU/SC/1160/2002 : AIR 2003 SC 2081, delivered in the case of Jinish Lal Sha Vs.
State of Bihar, wherein the Apex Court reversed the order of conviction after it was
affirmed by the concerned High Court in a judgment of a Trial Court under Section
366A/376 holding the accused to be guilty. The Trial Court and the concerned High
Court while maintaining conviction, believed the testimony of the victim girl together
with the radiological determination of age of victim without taking care of the
testimony given by the father of the victim girl. The testimony of father of victim girl
was sufficient enough to reveal the age of victim daughter, when she was taken away
by the accused, and it was 19 years on that day. The Apex Court considered the age
of the victim given by the father of the victim, compared to the other evidence, like
testimony of the victim girl and radiological examination report of the victim girl in
determination of her age, and upon consideration of which the Apex Court addressed
the issue observing that when the victim left the house of the father, she was not less
than 18 years of age. Besides above, the mandatory requirement in regard to her
consent having appreciated properly by the Apex Court, the accused was favoured
with acquittal.
25. Since, the victim/prosecutrix reached to a vulnerable age at the moment, when
she had been physically violated on repeated occasions for her consent to the sexual
acts, learned advocate for the appellant relying on a decision reported in
MANU/SC/0159/1980 : (1981) 1 SCC 107 in the case of Maru Ram Vs. Union of India
submitted that upon application of age relaxation of two (2) years on either side in
respect of the bone age, determined by the radiologist in course of the Ossification
Test of victim girl, the benefit of doubt in the given set of facts ought to have been
given to the accused/appellant instead of convicting him. In the referred case, the
constitutionality of Section 433(A) Cr.P.C. was challenged in writ jurisdiction before
the Apex Court after the accused was held convicted and sentenced appropriately,
when it was propounded by the Apex Court that benefit of doubt should be in favour
of the accused committing the crime. In the case at hand, there is hardly any scope
to favour the accused with benefit of doubt, where the victim/prosecutrix consistently
denied to have consented to the sexual acts leaving no chance to apply the benefit of
doubt, even after application of age relaxation of two years.
26. In the case referred by appellant, reported in MANU/SC/1309/2018 : (2018) 9
SCC 248, delivered in the case of Rajak Mohammad Vs. State of Himachal Pradesh,
the victim had freely moved around with accused/appellant, and in course of such
movement the victim came across many people at different point of time, when the
victim did not complain of any criminal act on the part of the accused so long she
remained in the company of accused/appellant. The case in hand revealed that the
victim was violated on several occasions in her own house, and that too during day
time. In the referred case, the victim/prosecutrix contradicted her previous statement,
unlike the case in hand. In support of age of the victim, the school admission form
and the certificate issued by the school were produced in evidence. The teacher of

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 school, where the victim pursued her study at one point of time, proved the
admission form. The details of the admission register were entered obtaining
information from school leaving certificate, issued by a government primary school.
The certificate issued by the government primary school on the basis of which the
details in the admission form, were entered, remained un-exhibited in the trial. The
mother of the victim also remained unexamined in such case. Upon consideration of
the totality of the facts in such case, the benefit of doubt was granted to
accused/appellant. The referred case is thus, distinguishable on facts from the case
under reference.
2 7 . State/respondent assailing such argument of the appellant submitted that the
Ossification Test Report could not be a conclusive proof of age where flexibility of 2
years on either side had become the binding precedent as per consistent view of the
Apex Court, and on applying age relaxation of 2 years on the lower side of the age,
as found in the Ossification Test Report, the victim/prosecutrix could be safely taken
to be less than 16 years of age at least on the date of incident i.e. on 22.06.2008,
corresponding to 7th Ashar, 1415 B.S., leaving no scope for the victim to exercise
her free and conscious consent to the sexual act committed upon her, complained of.
28. Thus, according to State/respondent, the consent of a minor, if given or obtained
otherwise than on consent to the sexual act, complained of, prior to reaching her age
of discretion, would be without any relevance.
29. A perusal of the evidence adduced by the Investigating Officers (PW-15 and PW-
16), reveals that none of the Investigating Officers ever attempted to collect any age
proving document of the victim girl, at least the school certificate, wherefrom the
victim last studied. The categorical evidence of the victim/PW-1 is very significant to
reveal that at the time of occurrence, she was a student of class VIII of Malancha
High School, and further she stopped her study two years ago, which she revealed in
course of her evidence given on June, 2010, in response to an incident held on
22.06.2008.
30. It is equally more true that there was no cross-examination intended to any of
the Investigating Officers for having an explanation from the Investigating Officers as
to what prevented the Investigating Officers from collecting such age proving
document of the victim girl for appropriate application of adverse presumption,
contained in Section 114(g) of Evidence Act.
3 1 . As regards the consent, the State/respondent while supporting the order of
conviction, argued that when the victim/prosecutrix in her evidence consistently
stated that she had been violated several times, getting her alone in the home after
putting her in a fear of death, which received corroboration not only from the parents
of the victim (PW-2 and PW-4), but also from the aunt and uncle of the victim (PW-3
and PW-5), and further the issue of putting the victim in a fear of death by reason of
the threat being exerted upon the victim, not being shaken to doubt in cross-
examination, there was no scope for drawing an inference that the victim had taken
her conscious decision and accordingly consented to the act under reference.
32. Learned advocate for the respondent/State proposed for appropriate application
of the presumption available under Section 114 (A) of Evidence Act, read with
Section 90 of Indian Penal Code.
33. Reliance was accordingly placed by learned advocate for respondent/State on a
decision reported in MANU/SC/0948/2004 : (2005) 1 SCC 88, delivered in the case of

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 Deelip Singh @ Dilip Kumar Vs. State of Bihar, while advancing argument that the
instant case was otherwise than on consent i.e. consent was squeezed to be obtained
from victim girl forcibly, putting her in a fear of death, in consequence of threat, and
submitted further with much emphasis that whether a particular case of this nature,
where consent plays a predominant role, had to be adjudged from the attendant
circumstances, and in the given set of facts, the attending facts were not supportive
of coming to a definite conclusion that the act complained of was a product of
conscious decision of the victim to the sexual acts.
34. Reliance was further placed by the respondent/State on a decision reported in
MANU/SC/0246/2015 : 2015 SAR (Criminal) 388, delivered in case of Deepak Vs.
State of Haryana, while submitting that the instant case was such, where sexual
intercourse was not at all disputed by the accused/appellant, and what was
challenged was the consent of victim to the sexual intercourse having held several
times mutually and voluntarily. Thus, according to respondent/State, commission of
sexual intercourse not being disputed upon the victim, and when the
victim/prosecutrix consistently stated in her evidence that she did not give any
consent to the sexual intercourse done by the accused on her, which received
corroboration from other witnesses, the court is obliged to draw the presumption
under Section 114(A) of the Evidence Act against the accused holding that he had
committed sexual intercourse on the prosecutrix/victim against her will and against
her consent.
35. Respondent/State further proceeded to derive capital from a decision reported in
MANU/SC/0366/1996 : (1996) 2 SCC 384 delivered in the case of State of Punjab Vs.
Gurmit Singh and Ors., while offering explanation as to what prevented the victim
and ultimately her parents from seeking redressal before the law enforcing agency,
for their grievance, quoting some of the observations, made in Para-8 of such
decision, that a girl, in a tradition-bound non-permissive society in India, would be
extremely reluctant even to admit that any incident, which is likely to reflect upon her
chastity had occurred, being conscious of the danger of being ostracised by the
society, or being looked down upon by the society. Her not informing the teachers or
her friends at the examination centre under the circumstances cannot detract from her
reliability. In the normal course of human conduct, this unmarried minor girl, would
not like to give publicity to the traumatic experience, she had undergone and would
feel terribly embraced in relation to the incident to narrate it to her teachers and
others, overpowered by feeling of shame and her natural inclination would be to
avoid talking about it to anyone, lest the family member and honour is brought into
controversy.
3 6 . Since a Santal community belonging minor girl having fallen a victim to the
insatiable hunger of sex, she cannot be expected to divulge the same ignoring all
sorts of ordinary consequence naturally to follow, for the stigma of the incident
attached with it, and upon consideration of the same, we most respectfully apply the
same subscribing our same view to the observation of the Apex Court given in
context with the situation making a victim girl most vulnerable at her age.
37. Contradictions, inconsistencies and discrepancies in the evidence without being
potent and major enough cannot be expected to reach to the very core of the
prosecution case and it should be disregarded. In order to fortify the same,
respondent proceeded to take shelter on a decision reported in MANU/SC/1168/1999
: (1999) 9 SCC 525, delivered in the case of Leela Ram (Dead) Through Duli Chand
Vs. State of Haryana & Anr., wherein it was decided that minor embellishment and

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 trivial discrepancy would not themselves render the evidence unbelievable.
3 8 . Regarding the necessity of corroboration, as regards the testimony of the
victim/prosecutrix, learned advocate for the respondent relying on a decision
reported in MANU/SC/0750/2004 : (2004) 8 SCC 153, delivered in the case of State
of H.P. Vs. Shree Kant Shekari, submitted that there was no rule of law that the
testimony of the victim could not be acted upon without corroboration in material
particular. Thus, according to respondent/State, the theory of corroboration is a rule
of prudence, applicable in a case, where the face value of testimony of the victim
would be difficult to accept for some sufficient reasons, and the court in such
circumstances, would seek assurance to her testimony from other evidence.
3 9 . Referring such decisions, it was sought to establish that apart form the
corroboration, the victim received in this case, her sworn testimony was sufficient
enough to base conviction.
40. In such scenario of rival submissions canvassed over the issue of consent and
age of victim girl, as advocated by either parties to this case, we are thus called upon
to answer whether the victim was violated with her consent or without her consent.
4 1 . Prior coming to the core issue, incidental determination of age of the victim
poses a great question to be equally addressed to by us. The first date of occurrence,
when the victim was first violated is on 7th Ashar, 1415 B.S., corresponding to
22.06.2008. On the date of adducing evidence, victim claimed her to be of fifteen
(15) year old, and she maintained such stand during her statement made before
learned Magistrate under Section 164 Cr.P.C. (Exhibit-1). We are surprised to learn
that the victim having pursued her study in a school at Class VIII at the relevant point
of time, the Investigating Officers failed to collect any age proving document, though,
victim was put up for Ossification Test for determination of her age. It makes a
strong sense for us to accept the settled proposition in the given circumstances that
the testimony of the victim/prosecutrix, if alone can form the basis of conviction,
provided the same is otherwise acceptable. The latches on the part of the
investigation though, sought to be encashed by the appellant taking aid of Section
114(g) of the Evidence Act, but the testimony of the victim not having suffered from
any infirmity or blemish whatsoever, the same would inspire confidence.
42. Upon perusal of the evidence of the victim/prosecutrix, it appears that the threat
of the accused/appellant thereby, putting the victim in a fear of death remained
undiscredited in the cross-examination of victim/prosecutrix, and the same, however,
remained undisturbed even after putting an unproductive suggestion, as regards the
consensual sex, which was ultimately denied by the victim.
43. The courts are supposed to deal with cases of sexual crime against women with
utmost sensitivity. Mere non-production of age proving document in the given set of
facts cannot be taken to be a strong ground, ipso facto to disbelieve the age of the
victim girl, as established during trial. Alternatively it may be put in this way that the
accused/appellant without having obtained any explanation from the Investigating
Officer by putting sufficient question during the cross-examination, the circumstances
are not supportive of drawing adverse presumption under Section 114 (g) of the
Evidence Act against the prosecution.
44. The Trial Court applying the age relaxation of two (2) years in lower side of the
bone age of the victim, assessed by radiological examination for Ossification Test,
arithmetically proceeded to ascertain the age of the victim on the date of incident to

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 be less than sixteen (16) year old keeping in mind the age of the victim, disclosed on
her adducing evidence i.e. on 21.06.2010, for an incident held on 22.06.2008. The
entire exercise done by the Trial Court appears to have been arithmetically reached,
while making estimation of age of a victim in a case, where neither the victim, nor
her parents even disclosed the actual date of birth of the victim girl.
45. The Trial Court thus, proceeded to calculate and estimate the age of the victim
girl, taking her to be of fifteen (15) years of age on 22.06.2008, as she claimed to be
of seventeen (17) years of age on 21.06.2010, the date on which she adduced her
evidence in court. The endeavour already put by the Trial Court for the assessment of
age of victim, in that view of the matter, cannot be doubted anymore. However, if the
testimony of the father of the victim (PW-4) is considered, who described her
daughter to be of sixteen (16) years of age on 02.08.2010, the day when he adduced
evidence before the court, will not help the accused to claim any benefit, without
successful proof of consent of victim girl. Therefore, even after taking into account
the evidence of father of the victim (PW-4), the victim can safely be described to the
either about to reach the age of discretion, or just crossed her age of discretion,
rendering her status to be most vulnerable. Even after assuming that the victim has
just crossed her age of discretion in recent past, that itself alone will not pave the
way for acquittal without discharging the burden of proof in rebuttal of the evidence
of the victim denying to have consented to the sexual acts performed upon her by
reason of threat perpetrated upon her.
46. So, mere reaching the age of discretion alone without making out a strong case
of consent, the assessment of the age, as reached by the Trial Court should not be
looked with suspicion.
47. The term "consent" appearing in Section 90 of Indian Penal Code appears to have
not been defined in positive sense, which may be reproduced hereunder;
"90. Consent known to be given under fear or misconception. - A consent is
not such a consent as is intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception; or
[Consent of insane person] if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
[Consent of child] unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age."
4 8 . Whether a particular case of physical violation is with consent or absence of
consent, it is question of fact, which needs to be determined from the evidence
adduced in every case before invoking the rigour of Section 114(A) of Evidence Act.
4 9 . In the instant case, it is significant to note that during the examination of
accused under Section 313 Cr.P.C., the plea of consent remained unpleaded. The
appellant was not able to give any satisfactory explanation in his statement recorded
under Section 313 of the Code nor was able to adduce any defence to rebut the
presumption contained in Section 114(A) of the Indian Evidence Act, 1872 against
him. As has already discussed that the credibility of PW-1 as regards the threat, she
had received while being physically violated, could not be impeached even in her

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 cross-examination inclusive of unproductive cross-examination, ultimately being
denied by the victim in her evidence, so the accused/appellant miserably failed to
make out a stand, contrary to the version asserted by the victim herself. The question
of consent is really a matter of defense of the accused, and it is for the accused to
place the material to show that there was consent, in a case where victim specifically
and consistently denied to have consented to the sexual acts on several occasions.
50. The presumption engrafted in Section 114(A) of the Evidence Act is rebuttable
one, subject to discharge of onus in the event of onus being shifted to accused in a
case where victim denied to have consented to the sexual act. The proof of burden as
regards the consent in a case where defense is based purely on consent, is thus
directed against appellant.
51. While determining a case based on consent or absence of it, the same could be
gathered from the attendant circumstances, which was rightly referred by the learned
advocate for the State/respondent [Deelip Singh @ Dilip Kumar (Supra)] to which we
sincerely subscribe our same view on the issue. In an effort to ascertain required
consent, the previous or contemporaneous acts or the subsequent conduct can be
legitimate guide.
52. Let us look back once again to the evidence adduced during trial. Victim in her
evidence stated that she had no previous acquaintance with the accused, not even
any visiting terms. The victim only found the accused/appellant residing in the same
village, as her co-villager only. She was not even provided with any circumstances to
talk with the accused/appellant even before the incident. The moment when she was
first physically violated, she was alone in her home, when the main gate of her house
was closed. In such state of situation, the accused/appellant managed his entry in the
house of the victim getting opportune moment, and which the accused/appellant
continued to make use of the same on repeated occasions, and that too in day time.
53. Evidence is there that the accused ravished the victim forcibly on several times in
her own house with a threat of dire consequence. The victim girl being highly
frightened of threat of accused did not dare to disclose the same even to her parents.
She was put to a strong panic stricken state of mind by reason of threat of accused.
She only tried to conceal the same out of her shyness and shame, at the cost of
protecting her chastity upon sensing the chance of being ostracised from her own
community till her biological changes, as noticed by her parents, when she disclosed
everything to parents pointing her hands to the accused/appellant as culprit of her
pregnancy. She disclosed that she was overpowered by pressing her mouth so that
she could not raise any alarm at the relevant time. The cross-examination transpired
nothing revealing animosity of the members (PW-7, PW-8 and PW-9) attending the
salish held for the purpose, against the accused/appellant.
5 4 . The pregnancy of the victim being brought to light, the accused/appellant
preferred to remain absent in the village meeting, though he in his unsuccessful
attempt during trial attempted to make a case of consensual sex with the victim girl.
It is something revealing connecting the contemporaneous acts and subsequent
conduct of the accused. There was nothing established conspicuously in the cross-
examination that there was prior meeting of minds between the parties, which
ultimately grew into a sexual intimacy between them.
55. The sequential events, if cumulatively considered together, as revealed from the
evidence in its entirety, the physical violation, testified by the victim herself can

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 hardly be regarded to be a conscious decision of the victim, performed mutually and
voluntarily giving her express and conscious decision to that act. Consequently, the
consent was squeezed to be obtained from the victim after consistently putting her in
a fear of death which, however, remained unshaken to doubt during the entire cross-
examination of victim herself.
5 6 . Thus, in the absence of consent being established conclusively in the cross-
examination of witnesses, it can be concluded that the consent was obtained by the
accused putting her in a fear of death, and while making physical violation of the
victim, the accused had reason to believe that the consent to the sexual act, he had
already squeezed, was given by victim in consequence of such fear of death.
5 7 . In that view of the matter, when commission of sexual intercourse by the
accused on the prosecutrix was not a disputed question of fact, the unimpeached
testimony of the victim particularly on the point of threat being exerted upon her by
accused, while making physical violation on repeated occasions, would automatically
invite rigour of Section 114(A) of the Indian Evidence Act, against the
accused/appellant for the peculiarity circumstances involved in this case, so as to
render him liable to suffer conviction under Section 376 I.P.C., at least for the date of
first instance i.e. on 7th Ashar 1415 B.S. corresponding to 22.06.2008, when the
victim was first physically violated forcibly receiving threat from the
accused/appellant, which was itself sufficient to determine the offence under Section
376 I.P.C. against the accused/appellant. Thus, while talking of offence under Section
376 I.P.C. is concerned, it was made complete on the date of first incident i.e.
22.06.2008, and consent if subsequently perceived to have obtained will not
improbabilise such incident.
5 8 . As regards the second point raised, an attempt was made by the learned
advocate for the appellant to highly improbabilise the prosecution story by reason of
long delay being caused in lodging the F.I.R. Admittedly there was long delay of
about seven (7) months caused in lodging the F.I.R. It was contended by the
appellant that such long delay remaining insufficiently explained left room for
concoction and embellishment in the version of the prosecution case.
5 9 . Respondent State assailing such argument of the appellant submitted that
sufficient explanation had been offered in the evidence, examined by the prosecution,
and upon viewing such sequential events together, the delay so occurred in lodging
the F.I.R. could not be construed to be fatal for the prosecution. The respondent
State further submitted that victim was tribal girl, of whom the degree of intelligence
and exposure could not be equated with urban girl.
60. It is a case where victim concealed her physical violation receiving a continuous
threat of accused until her pregnancy was noticed by her parents seeing her
physically changes, when she was carrying about six month old pregnancy. A tribal
girl perusing her study in class VIII cannot be taken to be much sensitive, compared
to an urban girl of the same class and same age. The socio-economic background of
the victim is an important aspect, which we are obliged to consider bearing in mind
the practice, precedent and customs observed in Santal community still. The
dehumanizing act of accused/appellant made unlawful physical intrusion upon the
victim, left indelible mark in her psychological traits, apart from the ignominy, she
would face in respect of herself assessment and dignity. The chances of being
ostracized from society in the event of illegal doing being brought to light is still in
practice in Santal community. It might be with such understanding, the minor victim

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 girl continued to conceal the incident to her parents receiving a threat from accused
until it was detected by her parents by reason of her biological changes. Such
conduct of the victim as regards the concealment of the incident to her parents
cannot be taken to be unnatural, and not sufficient enough to improbabilise her own
version. The bewildered father, like PW-4, of the victim girl having known such
incident in his first attempt, tried to socialize the same bearing in mind the stigma
ordinarily attached with the incident, simply for the purpose of making her daughter
suitably rehabilitated.
61. Since, there was a Santal Samaj, as testified by PW-8, such Samaj was called
upon to deliberate on that issue so that there could be an arrangement of marriage.
When everything turned to be futile exercise on two dates scheduled for meeting,
because of the non-appearance of the accused/appellant in the meeting, the father of
the victim had to obey the decision of his fellow members committee asking him to
wait for few months, and then to lodge the complaint against the accused/appellant
for appropriate redressal. So all such events, if picturised sequentially, nothing could
be safely concluded to be abnormal, improbable and unnatural, and it was sufficient
enough to explain the delay caused in lodging the F.I.R. The settled proposition is
that delay in lodging the F.I.R., if satisfactorily explained will not become fatal for the
prosecution. This is a case where the delay has been sufficiently explained in the
evidence itself, though not disclosed in the F.I.R.
6 2 . The sworn testimony of victim/prosecutrix being believable and inherently
probable will inspire confidence apart from the corroboration she received from other
witnesses, as discussed hereinabove. In the absence of any discrepancy in her
evidence, it is sufficient enough to leave honest impression that she had been
physically violated by the accused/appellant without her consent. We are not at all
impressed to favour the accused/appellant with benefit of doubt, as sought to be
applied over here, for the shifted onus of accused/appellant not being appropriately
discharged.
63. For the discussion made above, we do not want to interfere with the findings
reached by the Trial Court, while holding the accused to be guilty of offence under
Section 376 I.P.C. The order of conviction having been recorded adhering to the
principles of law and after making perfect appreciation of the evidence adduced on
that score, there is hardly any scope to declare that the findings reached by the Trial
Court are perverse being not based on evidence.
6 4 . The other offences, so determined by the Trial Court being incidental to the
principle determination of offence under Section 376 I.P.C. will, however, remain
uninterfered with, because it appears to us that such offences under Section 448/506
(Part-1) I.P.C. have been perfectly determined appreciating the evidence rightly.
65. We also do not want to interfere with the sentence already awarded against the
accused/appellant for the offences, for the same being appropriately awarded in the
instant case.
6 6 . Both conviction and sentence would thus go unaltered. We maintain the
conviction and sentence awarded in this case.
67. The criminal appeal fails being without any merits, and accordingly dismissed.
68. All the sentence to run concurrently and the accused/appellant be provided with
opportunity of claiming set off under Section 428 Cr.P.C., if any, in respect of the

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 period already undergone in the correctional home.
69. With this observation, the criminal appeal stands disposed of.
7 0 . Department is directed to send a copy of this order to the concerned
Superintendent of Correctional Home, where the convict/appellant is detained.
71. Department is further directed to send a copy of this judgment along with Lower
Court Record to the concerned Trial Court without causing any delay through the
concerned District Judge.
7 2 . Urgent certified copy of this order, if applied for, be given to the appearing
parties as expeditiously as possible upon compliance with the all necessary
formalities.
Sahidullah Munshi, J.
I agree.
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