Criminal Appeal (SJ) No.64 of 1998 Against the judgment and order of conviction dated 20. 01. 1998 and order of sentence dated 22. 01. 1998, passed by Shri C. M. Prasad, Sessions Judge, Katihar, in Sessions Case No. 8 of 1993. Bigan Hussain, son of Late Ejaz Hussain, resident of Village- Beni Rasulpur, P.S. Balia Belaun (Kadwa) District- Katihar. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. N. A. Shamsi, Advocate. Mr. S. Quaisar Hasan, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged in the Fardbeyan by the informant that she is handicapped girl aged 25 years old and she also lives on doing light labour Majduri and also unmarried. She was carrying pregnancy of five months to the date of report (03.10.1991). She alleged that about five months ago she went to house of 2 Bigan Hussain for mudding the wall and on that day, Bigan Hussain committed rape. It has further been alleged on the next day, she again went to take cow dung near the Bathan there she was again subjected to rape then she disclosed about the occurrence to her mother. Then her mother reported the matter to Md. Munshi and Hamid Hussain, the cousin of accused but they chided and assent to do justice, but no decision was taken rather they threatened that if she would vex them any more they will set her house on fire. Subsequently when the pregnancy of the victim was reported then cousin brother of the appellant assured to do justice and thereafter panchayati. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted. Cognizance taken and the case was committed to the Court of Sessions. 5. The learned trial court considering the evidence of the victim P.W. 3 Sukhni Devi, who supported the prosecution case about rape by Bigan Hussain when she went to house of Bigan Hussain for mudding under a threat to kill and she reported the matter to her mother. 6. The mother P.W. 7 in her deposition supported the prosecution case that she reported the matter to the 3 cousin of Bigan, but first chided and threatened, but subsequently assured to do justice and Panchayati having been convened. The other witnesses P.W. 1, 2, 4 and 6 supported the prosecution case regarding Panchayati and P.W. 5, doctor proved that victim was pregnant five and half months. 7. The defence took plea that there was a compromise petition and sexual intercourse was done with consent and considering the evidence and plea of defence, the trial court convicted the appellant that charge under Section 376 I.P.C. is made and accordingly sentenced. 8. The learned counsel for the appellant however, contends that there is delay in lodging the F.I.R. and the victim has got sufficient opportunity to file the case, but she has not choose then it shall deem that there was consent. It has further been submitted that in the Fardbeyan there is allegation she was raped twice, but in her evidence she has only depose about rape of first time in the house and there are various contradiction in the evidence of witnesses and time of occurrence has not been specifically mentioned. 9. Learned counsel for the State, however, 4 submits that victim supported the prosecution case and doctor proved that she was pregnant, prima facie established and the victim having belong to lower strata of society itself explain the delay as first under the threat and second under the assurance that justice will be done by the elder and Panchayat and hence, delay has sufficient been explained. 10. Hence considering the respective submissions and considering the record as well as evidence, I find that victim has supported the prosecution case about rape without her consent while she was mudding the house of Bigan Hussain and matter raised by her mother before elder and Panchayat and she was threatened. However, it has also been apparent that victim is a handicapped lady lower strata of society. In such situation, it appears that matter was not reported to the police for various reasons as in our traditional society no unmarried girl like to report like as rape or even the occurrence which affects chastity as there is reason that she be looked down of the society and even the family members and probability of her marriage may be bleak and when the matter was pending before the village elder and Panchayat, explain the delay in 5 lodging the case. 11. However, it is true that in the evidence of witnesses there are various contradictions and discrepancies and evidence of other witnesses suffer from infirmities. However, taking into consideration the evidence of P.W. 3 about rape is no reason to disbelief and appellant has taken defence of compromise and victim being consenting party. Hence taking into consideration that victim was rustic and handicapped lady in lodging the F.I.R. and delay in lodging the F.I.R. has well been explained when the matter was placed before elder and Panchayat in the village itself. 12. However, taking into consideration the entire fact it does not appear to be any motive for false implication and there is no reason assign or mention for false and fake implication. 13. Hence taking into consideration the entire facts and circumstances, I do not find any merit to interfere with the order of conviction recorded by the lower court. 14. So far, sentence is concerned, the occurrence is of the year 1991 and the appellant remained in jail from 02. 06. 1996 to 27. 02. 1998 and further the appellant has 6 remained in jail after conviction. 15. Hence to end of justice shall meet under by sentencing the appellant for the period already undergone. Hence with this modification of sentence this appeal is dismissed. Patna High Court, The 9th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)