Page No.# 1/13 vs Md Faizur Rahman And Anr
2022 Latest Caselaw 4622 Gua

                                                                              Page No.# 1/13

GAHC010006982011




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./120/2011

            MD SAHAD ALI AND ANR
            S/O LATE RAHIMUDDIN, R/O VILL. BORTARI, P.S. DHUPDHARA, DIST.
            GOALPARA, ASSAM.

            2: MUSTT. DALIMAN NESSA

             D/O SAHADD AI
             R/O VILL. BORTARI
             P.S. DHUPDHARA
             DIST. GOALPARA
             ASSAM

            VERSUS

            MD FAIZUR RAHMAN AND ANR
            S/O MD. ABDUL AZIZ, R/O PADUPARA, P.S. DHUPDHARA, DIST.
            GOALPARA, ASSAM.

            2:THE STATE OF ASSAM

Advocate for the Petitioner   : MR.D BANIA

Advocate for the Respondent : MR. B SARMA(ADDL.PP, ASSAM)




                                   BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                        JUDGMENT

Date : 23-11-2022

Heard Mr. B. Choudhury, learned counsel for the accused-appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State/respondent No. 1 as well as Page No.# 2/13

Mr. A. Khaleque, learned counsel for the respondent No. 2.

2. This appeal has been preferred by the victim and her father as an informant against the judgment and order dated 19.11.2010, passed by the ld. Assistant Sessions Judge, Goalpara in Sessions case No. 67/2010 under Sections 366/417 IPC, whereby the ld. Assistant Sessions Judge, Goalpara acquitted the accused/ appellant.

3. The facts of the case is that on 27.07.2010, the informant Sahad Ali lodged an FIR stating inter alia that about 4(four) months back, accused/appellant Md. Faizur Rahman took his married daughter Daliman Nessa to his house with a view to marry her. Accordingly on the same day, she gave talak to her former husband and the accused promised to marry his daughter after expiry of the 'iddat' period. But after expiry of the said period since three months the accused did not marry his daughter. Then he approached the accused/appellant, the accused refused to marry his daughter.

4. On receipt of the complaint, a case was registered vide Dhupdhara P.S. case no. 68/2010 under Sections 366/417 IPC and the investigation was started. During investigation, the investigating officer visited the place of occurrence, examined the witnesses including the informant and his daughter/the victim and after completion of investigation, charge-sheet was submitted against the accused/appellant under sections 366/417 IPC before the CJM, Goalpara. As the offence under Section 366 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

5. During trial, on appearance of the accused/appellant before the court, charge was framed under Sections 366/417 IPC which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried.

6. To substantiate the case, the prosecution examined as many as 7(seven) number of witnesses. On the other hand, the defence did not choose to adduce any evidence in support of his case. After completion of prosecution evidence, the accused/appellant was examined under Section 313 Cr.P.C. and all the allegations made against the accused/appellant appeared from the evidence of the witnesses put before him for his explanation where he Page No.# 3/13

denied the allegations. It is further stated that he has been falsely implicated in this case. After hearing the argument advanced by the learned counsels for both the parties, the ld. trial court had acquitted the accused. Hence this appeal.

7. It was urged by the ld. counsel for the accused/appellant that it is true that the case against the accused/appellant is not proved beyond all reasonable doubts under section 366 IPC. However, the accused had committed the offence under Section 417 IPC as he earlier had promised to marry the victim but subsequently he refused to marry her, thereby cheated the victim.

8. It is also the submission of ld. counsel for the accused/appellant that when the prosecutrix under the misconception of facts to the extent that the accused is likely to marry her submits to the lust of the accused such a fraudulent act cannot be said to be consensual, so far as the statement of the accused is concerned. It is also submitted that the accused/appellant had promised to marry the victim girl in front of the village people and subsequent refusal of marriage will come under the purview of Section 417 IPC. Hence the accused/appellant may be convicted under the said provision of law.

9. In support of his submissions, ld. counsel has placed reliance on the following case laws:- (2005) vol. 1 SCC 88 (Deelip Singh @ Dilip Kumar -vs- State of Bihar), (2005) vol.9 SCC 15 (Devender Kumar Singla -vs- Baldev Krishan Singla, (2013) vol.7 SCC 675 (Deepak Gulati -vs- State of Haryana).

10. The Additional Public Prosecutor for the State also argued in the same tune by stating that the offence under Section 417 IPC is proved against the accused/appellant beyond all reasonable doubts. Hence, the accused/appellant be convicted under the said provision of law.

11. Before further proceeding of discussion on the issue, we have to ponder over the evidence of the witnesses.

12. PW1 is the informant as well as father of the victim. From his deposition, it reveals that the occurrence took place in the month of Bahag (April). He was away from home on the day Page No.# 4/13

of occurrence. When he returned back home at the morning, he did not find his daughter at home. On being asked his wife Jabeda told him that the accused had kidnapped their daughter. Then he went to the house of the accused alongwith Azibur, Sakkiyar, Abdul Haque, Sahabuddin and others and he found his daughter in the house of the accused/appellant.

13. PW1 also stated that in the presence of village people, he asked Daliman and the accused/appellant that as to why the accused had taken her. Then the accused confessed that he would marry Daliman. Previously, Daliman had been married to one Chand Miyan. The village people advised Daliman to obtain divorce from her former husband. As per their religious custom, after obtaining divorce from her former husband and completion the customary 'iddat' period, a girl is given in marriage to a second person. But the accused did not marry his daughter. On the day of wedding ceremony, the accused did not come and by that way he cheated his daughter. Subsequently he lodged the FIR.

14. In his cross-examination, PW1 replied that he did not see his daughter being kidnapped but in presence of the public, the accused said that he would marry her if her former husband gave talak to her. Subsequently, Chand Miyan had given talak to his daughter in the presence of the Kaji Abdul Kalam and the public as well but the talaknama was not handed over to the police.

15. PW2 is Md. Azibur Rahman who was the neighbour of both the parties. He deposed in his evidence that the occurrence took place at night. The complainant informed him on the next day morning that his daughter was missing and that she was at the house of the accused/appellant. He accompanied the informant to the house of the accused and some other village people Sahad, Safiul Haque, Sahabuddin, Naskar Ali, Azizul Haque, Iyad Ali and others and found the victim/Daliman in the house of the accused. In presence of the public, they asked Daliman and she replied that the accused had taken her from her house and the accused also told that he would marry her.

16. It is also stated by PW2 that as Daliman was a married woman and after obtaining the divorce from her former husband, the marriage would be held. Accordingly, Daliman decided to get married after obtaining talak from her former husband after completion the 'iddat' Page No.# 5/13

period. After talak, Daliman stayed in the house of her father and later on, the father of the victim told her that although the date of wedding was fixed, the accused did not come to marry his daughter. Thereafter, the complainant filed a case against the accused.

17. In his cross-examination, PW2 replied that he did not know how Daliman had gone to the house of the accused. The accused had not been given any undertaking by saying that he would marry the victim but he had made a promise to that effect before the presence of the public.

18. PW3 is the mother of the victim, Jabeda Khatun. From her deposition, it discloses that the incident occurred at night when she was busy in cooking at the kitchen. Later on, she did not find her daughter in the house and she had searched for her. In the morning, Basir, Azibar and others told her that the accused had eloped Daliman and kept her in his house. Some people of their village along with her husband went to the house of the accused to enquire and the accused disclosed that he would marry the victim. But even after promising to marry her daughter, the accused cheated her by not marrying her even after she had obtained divorce from her previous husband.

19. In her cross-examination, PW3 replied that she had not gone to the house of the accused person. She did not notice Daliman in the house of the accused.

20. PW4 is also neighbour of the victim. According to him, he came to know from the mother of the victim that her daughter was missing from their house and they were in search for her. While he visited the house of the accused, he found a big gathering there and also noticed Daliman in the house of the accused.

21. The victim was examined in the case as PW5 who deposed in her evidence that on the date of occurrence, she was sleeping in her room and her mother was in the kitchen. The accused then came there, carried her away forcibly by gagging her mouth. He dragged her away. Sometime he kept her in the ground and again took her in the lap. The accused took her in his house. In the morning, when the accused person's parents came, the accused disclosed that he would marry her. The village people also came in the morning. On being asked, the accused also stated that he would marry her. Prior to the incident, she had been Page No.# 6/13

married to another person. The public obtained talaknama from her earlier husband Chand Miyan and after giving her three months time fixed her marriage. One day before the date of wedding, the accused stated before the public that he would not marry her. Thereafter her father lodged the FIR.

22. In her cross-examination, PW5 replied that while holding her, the accused had gagged her mouth because of which she could not raise alarm. When he dragged her away along the road, she did not suffer from any pain in her body. She had acquaintance with the accused since before the occurrence.

23. PW6 is Mustt Shasbhun who was a reported witness. According to her, she came to know from Jabeda about the incident that Daliman was missing from her house. She came to know that the accused/appellant stated that he would marry Daliman after a period of three months but he did not do so as such this case has been instituted.

24. After going from the evidence of the witnesses as well as the documents available on record, it reveals that the charge was framed by the ld. trial court under Sections 366/417 IPC. The ld. counsel for the accused/appellant admitted that the prosecution has failed to prove the case against the accused/appellant under Section 366 IPC but the offence under Section 417 IPC is made out. Hence he be convicted under the said provision of law.

25. Section 378 Cr.P.C. deals with the appeal in case of acquittal which reads as follows:-

(1) Save as otherwise provided in sub- section (2), and subject to the provisions of sub- sections (3) and (5), -

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an Original or appellate order of an acquittal passed by any Court other than a high Court (not being an order under clause a) or an order of acquittal passed by the Court of session in revision.

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(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (5 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Court, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of any acquittal passed by any Court other than a high Court (not being an order under clause a) or an order of acquittal passed by the Court of Session on revision.

(3) (No appeal to the High Court) sub-section (1) sub-section (2) shall be entertained except with the leave of the High Court.

(4) if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall be under sub-section (1) or under sub-section (2).

On a bare look at the provision, it reveals that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-

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appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open for determination by the High Court in an appeal against an order of acquittal. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by the Hon'ble Supreme Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.

In the case of Atley -vs- State of U.P. (AIR 1955 SC 807) it is well settled that the court of appeal has wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

In the case of Aher Raja Khima -vs- State of Saurashtra reported in (1955) 2 SCR 1285 the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, it was observed by the Hon'ble Apex Court "it is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong."

Yet in another leading decision in Shivaji Sahabrao Bobade -vs- State of Maharashtra reported in (1973) vol.2 SCC 793 it was held that in India, there is Page No.# 9/13

no jurisdictional limitation on the powers of appellate court. "In law there are no fetters on the plenary power of the appellate court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration."

In another case in Ramesh Babulal Doshi -vs- State of Gujarat reported in (1996) vol.9 SCC 225, it was observed that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions."

In a case of Ramanand Yadav -vs- Prabhu Nath Jha reported in (2003) vol.12 SCC 606, it was observed that generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether Page No.# 10/13

any of the accused committed any offence or not.

From the above decisions, in Chandrappa and Ors. -vs- State of Karnataka reported in (2007) vol.4 SCC 415, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

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26. Reverting to the present case, the ld. trial court had acquitted the accused/appellant on the ground that to establish the charge under Section 366 IPC, there should be acceptable evidence to show that either the victim was compelled to marry the accused against her will or she was forced to or induced to intercourse against her will. This would therefore require the prosecution to prove that there was some undue force on the victim either to marry accused or to have sexual intercourse with him.

27. On perusal of the evidence of the victim as well the other witnesses including the statement of the victim under Section 164 Cr.P.C., there is no such acceptable evidence to show that the victim was compelled to marry the accused/appellant against her will or she was forced to have sexual intercourse against her will. Though PW5, the victim deposed in her evidence that the accused had taken her away forcefully by gagging her mouth but it also appears from the evidence of the witnesses that while she was taking away by the accused, the accused put her on the ground and sometimes kept her on his lap. The victim admitted the fact in her cross-examination also. Under such backdrop, it can easily be said that the victim got enough opportunity to flee away from the clutches of the accused.

28. There is also no allegation against the accused/appellant that the victim was compelled to marry him after the elopement. It appears from the evidence of the witnesses that the accused disclosed before the village people that he would marry her. That the victim being a married woman, she should have taken talak from her earlier husband. Though it is revealed from the evidence of the witnesses that the previous husband of the victim divorced her by executing a talaknama but the copy of talaknama is not available in the record. The said Chand Miyan was not examined in this case and there is no such evidence as to give divorce to Daliman by her earlier husband or not. As such the offence under Section 366 IPC is not proved beyond all reasonable doubts which the ld. counsel for the accused/appellant also admitted at the time of hearing before this court.

29. Coming to the offence under Section 417 IPC, the allegation against the accused/appellant is that though he disclosed before the village people that he would marry the victim but subsequently he refused to marry her. According to PW1, a date was fixed for marriage of the victim with the accused/appellant but on the day of the wedding ceremony, Page No.# 12/13

the accused/appellant did not come and that he cheated his daughter. PW2 stated that he was informed by the informant that although the date of the wedding was fixed, the accused did not come to marry his daughter. According to PW2, the accused had not given any undertaking by saying that he would marry the victim but he had made a promise to that effect before the public. PW3 is the mother of the victim simply stated that the accused/appellant though promised to marry her daughter but did not marry her. She did not utter a single word that whether any date of marriage of her daughter was fixed with the accused. PW5, the victim stated something different regarding fixing of marriage with the accused. According to her, one day before the date of marriage, the accused/appellant stated before the public that he would not marry her.

30. The allegation against the accused/appellant is that he promised to marry the victim but subsequently he refused to marry her. If at all there was any promise for marriage, it is a case of breach of contract, which cannot be stated to be there was any dishonest intention on the part the accused to deceive the victim.

31. To prove the offence under Section 417 IPC, prosecution must prove the offence prescribed under Section 415 IPC which reads as follows :-

Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.

32. After going through the evidence on record as well as the aforesaid proposition of law, I am of the opinion that the prosecution has failed to prove that the accused/appellant had any dishonest intention to deceive the victim when he had made a promise to marry her.

33. In view of the above, no interference is called for in this appeal, which is accordingly dismissed. The views expressed by the ld. Trial court are reasonable and possible views and Page No.# 13/13

there is no perversity therein.

34. The appeal is disposed of accordingly.

35. Send back the LCR.

JUDGE

Comparing Assistant