CRL.A. 252 of 2004 1

         IN THE SUPREME COURT OF  INDIA            CRIMINAL APPELLATE JURISDICTION   

           CRIMINAL APPEAL  NO. 252 OF 2004

ATHESHAM ALI ..  APPELLANT

vs.

STATE OF BIHAR (PRESENTLY JHARKHAND) ..  RESPONDENT

O R D E R   

1. This appeal is directed against the judgment of the  

High Court of Judicature at Patna dated 5th August, 2003,  

whereby the conviction and sentence imposed by the trial  

court on the appellant under Section 376 of the Indian  

Penal Code has been maintained.   

2. The prosecution story is as under:

2.1 P.W. 5 the prosecutrix was returning to her home in  

village Nasira at about 6:00p.m., about 7 months before  

the  lodging  of  the  First  Information  Report  when  the  

appellant  who  was  standing  nearby  caught  hold  of  her,  

gagged her mouth, took her forcibly into his room and on  

the point of a dagger, committed rape on her.  She was

CRL.A. 252 of 2004 2

also confined to the room for about three hours and when  

she came out at about 10:00p.m. and remonstrated with him  

and expressed her fear, he told her that in case something  

amiss  happened,  he  would  marry  her.   The  prosecutrix  

returned home and on being questioned by her mother as to  

her whereabouts for two or three hours she told her that  

she was away taking tuitions.  As per her case, the rape  

was repeated after 2-3 days at about 6:00p.m. and again a  

couple of days later at the same time, but over taken by  

fear on the threats held out to her the prosecutrix did  

not  inform  anybody  as  to  what  had  transpired.   On  7th  

April,  1991,  the  prosecutrix  developed  acute  abdominal  

pain in her stomach on which she approached P.W. 1 - Dhano  

Devi, a mid wife, who examined her and told her that she  

was  pregnant.   She  also  made  an  attempt  to  abort  the  

pregnancy.  It was at this stage that the prosecutrix,  

having  no  option,  told  the  entire  story  about  the  

commission of rape by the appellant to her mother.  A  

First Information Report was, accordingly, lodged on 9th  

April, 1991, for the offence punishable under Section 376  

of IPC.   The prosecutrix was also taken to P.W. 8 - Dr.  

M.N. Sinha, who aborted the pregnancy after noticing that  

the  abortion  attempted  by  the  midwife  had  not  been  

successful.   It also appears that the appellant and his  

father were advised by the villagers that the appellant

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should  get  married  with  the  prosecutrix  and  when  this  

offer  was  refused  there  was  a  scuffle  between  the  

villagers on the one side and the appellant and his father  

on the other.   

2.2 The prosecution in support of its case relied upon  

eight witnesses including P.W. 1 - Dhano Devi, P.W. 5 -  

the first informant and the prosecutrix, P.W.4 - Mahmoon  

Khatoon,  the  mother  of  the  victim,  P.W.  7  -  the  lady  

doctor who had examined her on the allegations of rape and  

P.W. 8  - Dr. M.N. Sinha.  In his statement under Section  

313 of the Code of Criminal Procedure, the appellant made  

a bare denial and claimed that he was innocent of the  

offence alleged against him.   

2.3 The trial court and the High Court have concurrently  

held that rape had been committed on the prosecutrix as  

she had been threatened with dire consequences in case she  

revealed the story to anybody and this fear justified the  

delay of seven months in the lodging of the FIR.  The  

courts have also found that it is on account of fear that  

the prosecutrix had not revealed the factum of rape till  

the  date  she  became  apparently  pregnant.   The  Courts  

further held that the prosecutrix had also been given a  

promise  of  marriage  and  for  this  reason  as  well  the

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appellant was guilty of the offence alleged against him.   

3. We have heard the learned counsel for the parties.  

From a perusal of the evidence of the lady doctor – P.W. 7  

it stands revealed that the prosecutrix who was examined  

by her on 23rd August, 1976, was between  15-18 years of  

age and for arriving at this conclusion the doctor had  

relied on the ossification test which was required as per  

law.  We take it, therefore, that the defence was entitled  

to argue that she was 18 years of age on the date of the  

incident.  Even assuming that the rape had been committed  

before  seven  months  of  the  date  of  medical  examination  

this would still make her about 17 years of age.   

4. We  have  also  gone  through  the  evidence  of  the  

prosecutrix, her mother and P.W. 1 and the mid wife.  It  

is apparent from a reading of this evidence that the house  

of the prosecutrix and that of appellant were adjacent to  

each other and they were well acquainted.  We also find  

that the prosecutrix had been subjected to at least three  

different  incidents  of  sexual  intercourse.   As  per  the  

defence  it  was  by  way  of  consent,  but  as  per  the  

prosecution  it  was  rape  on  account  of  fear.   We  are,  

however,  of  the  opinion  that  it  would  be  difficult  to  

believe that close neighbours would be so morally scared

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of each other that the story of rape would not come out  

for seven months.  We also see from the record that soon  

after the first instance of rape an effort had been made  

to  get  the  accused  to  agree  to  a  marriage  with  the  

prosecutrix and during these discussions in which the co-

villagers had also been associated the appellant's brother  

had been killed by the villagers.  It is, therefore, very  

clear that the factum of the sexual intercourse was well  

known in the village long before the date on which the FIR  

had been filed.  The fear that the prosecutrix claims was,  

therefore, non-existent.

5. We have also seen the medical evidence particularly  

that of Dr. M.N. Sinha.  The doctor pointed out that she  

was about eight months pregnant on the date when he had  

examined  her  on  7th April,  1991  and  as  the  attempt  at  

abortion  by  the  untrained  midwife  P.W.  1  had  been  

unsuccessful he had carried out the medical termination of  

pregnancy(MTP).  We are, therefore, of the opinion that  

the present case is clearly one of consent.  It has been  

argued by the learned counsel for the State of Jharkhand  

(as at present) that the consent could not be inferred  

more particularly, as the prosecutrix was a victim of a  

broken promise.  We have considered this argument as well.  

We find that the appellant had not given any promise of

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marriage  and  the  promise  was  that  in  case  she  became  

pregnant, he would look after her.  This statement appears  

not only in the statement of P.W. 5 in Court but also in  

the FIR.   

6. For the reasons recorded above, this appeal deserves  

to succeed.  We, accordingly, set aside the orders of the  

Courts below.  The appeal is allowed.

7. The  bail  bonds  of  the  appellant  shall  stand  

discharged.

                   .......................J.          (HARJIT SINGH BEDI)

                   .......................J.

                                (CHANDRAMAULI KR. PRASAD) New Delhi,

    October 05, 2010.