Jharkhand High Court
Mustakim Ansari vs The State Of Jharkhand on 24 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 596 of 2010
[Against the judgment of conviction and the order of sentence, both dated 17.06.2010,
passed by the learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 217 of
2008]
Mustakim Ansari, son of Sahadat Ansari, resident of Village-Kajaro, P.S.
Bengabad, P.O. Bengabad, District-Giridih, State-Jharkhand.
..... ..... Appellant
-Versus-
The State of Jharkhand ...... ...... Respondent
[Through Video Conferencing]
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PRESENT
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Md. Shahabuddin, Advocate
For the State : Mr. P.K. Appu, A.P.P
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C.A.V. on 12.03.2021 Pronounced on 24 /09/2021
Heard Mr. Md. Shahabuddin, the learned counsel for the
appellant as well as Mr. P.K. Appu, the learned APP.
2. This appeal is preferred against the judgment of conviction and
the order of sentence both dated 17.06.2010 passed by the learned
1st Additional Sessions Judge, Giridih in Sessions Trial No. 217 of 2008,
whereby and where under, the appellant was convicted under Sections 376
and 450 of the Indian Penal Code and sentenced to undergo RI for seven
years for the charge under Section 376 of the Indian Penal Code. The
appellant was further sentenced to undergo RI for three years for the charge
under Section 450 of the Indian Penal Code and both the sentences were
ordered to run concurrently.
3. The prosecution case, in brief, as per the fardbeyan dated
17.01.2008 of the informant P.W.4 or victim (name concealed) is that on
10.01.2007 at 11 O'clock the informant was at her house and in the
meantime appellant Mustakim Ansari came and inquired about her mother
and father to which informant told him that her parents had gone for doing
work. Then Mustakim Ansari entered into her house situated in the western
side and committed rape with her. After committing rape the accused told
her that he will marry her and on pretext of marrying her, he continuously
committed rape with her. It is further alleged that when the informant
became pregnant then the appellant told that very soon he will marry her
but thereafter, he refused to marry with her. In the panchayati accused
confessed his guilt and again promised to marry her but he did not marry
and fled away. Informant further stated that the appellant regularly raped
her for about eleven months.
4. On the basis of the fardbeyan of the prosecutrix Bengabad P.S.
Case No.19 of 2008 dated 17.01.2008 was registered against the appellant
under Section 376 of I.P.C. After investigation charge-sheet was submitted
and cognizance of the offence was taken and the case was committed to the
court of Sessions. Charges were framed against the appellant under Section
376 and 450 of I.P.C. and trial was held. At the conclusion of the trial,
appellant was convicted and sentenced as aforesaid. Hence, this appeal.
5. At the trial the prosecution examined altogether eight
witnesses out of whom P.W.4 is the informant or victim of the case; P.W.1
is Karim Mian; P.W.2 is Sarjul Ansari; P.W.3 is Ahmad Ansari; P.W.5 is
Sahidan Bibi, who is the mother of the victim; P.W.6 is Dr. Manisha Jalan;
P.W.7-is Suleman Mian and P.W.8 is Safi Mian.
6. P.W.4 is the victim and the informant of the case. She has
stated in her evidence that the occurrence took place on 10.01.2007 at
about 11 am. She was alone at her house. Mustakim came to her house and
committed rape and continued committing rape with her for four-five
months and every time he assured that he will marry her. She became
pregnant and then she disclosed the matter to the villagers and then
panchayati was held and in the said panchayati, Mustakim told that he will
marry her but later on he refused to marry, therefore, she lodged this case.
Informant further stated that she has a child of one year and nine months
born out of rape by Mustakim. In her cross-examination informant stated
that she has solemnized marriage with Mustakim and Mustakim has not
divorced her and during her marriage she had told that she had accepted
Mustakim as husband and married with him. Informant further stated that
whatever happened it was with her consent.
7. P.W.1 is Karim Mian. P.W.1 has stated in his evidence that
accused Mustakim used to come at the house of the informant in absence of
her parents and both informant and Mustakim used to meet together. Later
on, he came to know that informant was pregnant and a panchayati was
held and in the panchayati Mustakim promised that he will marry with the
informant but later on Mustakim refused to marry. The accused Mustakim
was already married and he had two children.
8. P.W.2 is Sarjul Ansari and P.W.3 is Ahmad Ansari. Both P.W.2
and P.W.3 have stated in their evidence that panchayati was held in the
matter of rape committed by Mustakim with the informant. In the said
panchayati Mustakim had accepted that child in the womb of the informant
as his child.
9. P.W.5 is Sahidan Bibi, who is the mother of the informant. She
has stated in her evidence that two years nine months ago Mustakim
committed rape with her daughter, while she was alone in her house.
Thereafter, panchayati was held and in the panchayati the Mustakim had
accepted that he will marry with the victim but later on, he refused to do so
and thereafter, this case was lodged. In her cross-examination, P.W.5 stated
that her daughter had solemnized marriage with Mustakim in the jail and
her daughter intends to live with Mustakim.
10. P.W.6 is Dr. Manisha Jalan. P.W.6 has deposed that she was a
member of medical board constituted for conducting medical examination
of the informant. P.W.6 further deposed that on abdominal examination, the
victim was pregnant and her uterus was 26 to 28 weeks in size. The foetal
heart sound was present. On examination of private part, hymen was old
torn. Doctor opined that the possibi1ity of rape could not be ruled out.
Doctor further deposed that on 19-1-2008 the patient delivered, at about
11.25 am., a premature male child weighing 1 Kg 500 gram. Doctor has
proved the medical report of the informant which was marked as Ext.-2.
11. P.W.7 Suleman Mian and P.W.8 Safi Mian, both have deposed
that Mustakim had committed rape due to which informant became
pregnant and hence, panchayati was held and in the said panchayati
Mustakim had promised to marry the informant.
12. Mr. Md. Shahabuddin, the learned counsel for the appellant
submitted that there was delay in lodging the FIR against the accused and
there is no valid explanation for delay in lodging the FIR. Learned counsel
further submits that the prosecutrix is a matured lady aged more than 18
years which appears to be true in terms of deposition made by informant or
P.W.4 herself. The age of the informant was assessed by the medical board
to be 16 years and hence taking the age of +2 years on the higher side, the
informant would be 18 years of age. Learned counsel for the appellant
further submits that the victim has already solemnized marriage with the
appellant and she was ready to live with the appellant and the appellant is
also ready to live with her and hence none of the ingredients of Section 376
of the Indian Penal Code was brought on record by the prosecution for
securing the conviction and sentence of the appellant.
13. On the other hand, Mr. P.K. Appu, the learned APP appears on
behalf of the State and submits that this is a case of sexual assault or rape
on a young girl and her evidence is fully reliable and supports the
prosecution case. Learned counsel for the state further submits that all the
prosecution witnesses have deposed that panchayati was held to settle this
wrong and hence, holding of panchayati for such issue only further proves
the sexual assault by the appellant. P.W.1 Karim Mian, P.W.2 Sarjul Ansari
and P.W.3 Ahmad Ansari have also supported the fact of holding of the
panchayati, so it is obvious that the victim was raped and the appellant is
guilty. Regarding the non-examination of the Investigating Officer, learned
APP submits that in the light of the deposition of the doctor or P.W.6, the
non-examination of Investigating Officer does not prejudice the appellant
and hence the impugned judgment shall be sustained and upheld by this
court.
FINDINGS:
14. I have heard both counsels, gone through the records of the
case, the evidences and in the facts and circumstances of the case. Appellant
Mustakim Ansari has been convicted under Sections 376 and 450 of the
Indian Penal Code.
15. From the fardbayan as well as deposition of the prosecutrix,
I find that prosecutrix or P.W.4 has stated that while her parents were away
then in their absence the appellant Mustakim Ansari entered into her house
and committed rape with her and continued sexual intercourse with her on
pretext of marriage as a result of which prosecutrix became pregnant.
Thereafter, panchayati was held in which the appellant had confessed his
guilt and had promised before the panchayat to perform the marriage with
her but later on appellant refused to marry with the prosecutrix and then
FIR was lodged by the prosecutrix. During the trial of the case, prosecutrix
has specifically deposed that she has a child of one year and nine months
born due to rape by the appellant. But, in her cross-examination the
prosecutrix has specifically deposed that she had married with the appellant
Mustakim and appellant had not divorced her. Prosecutrix also deposed that
at the time of marriage, she had told that she had accepted the appellant as
her husband and had married him. Prosecutrix also deposed that whatever
occurred with her, it was with her consent. Hence, these admissions by the
prosecutrix cast doubt in the prosecution case. But, here it would be
pertinent to discuss section 90 of IPC which says that consent given under
the misconception of fact is not a consent at all. But, in the case in hand
admission of the prosecutrix that sexual intercourse took place with her
consent and she has accepted the appellant as her husband and married with
the appellant and she has a child of one year nine months old born as a
result of cohabitation with the appellant, it can be safely inferred that in the
case in hand, consent of the prosecutrix was not taken by suppression of
fact and hence, this is not a case of sexual intercourse in false pretext of
marriage and so, nothing survives in the prosecution case.
16. Though appellant has married with the prosecutrix and they
have child and prosecutrix has also said that they had sexual intercourse
with consent but one more issue of age of the prosecutrix has to be
addressed. The doctor or P.W.-6 has as per the physical and radiological
examination of the prosecutrix, assessed the age of the prosecutrix to be 16
years. Here, it would be pertinent to note the judgment of Hon'ble Apex
Court rendered in the case of Jaya Mala versus Home Secretary,
Government of Jammu & Kashmir and others reported in (1982) 2 SCC
538 wherein, at para-9 of its judgment Hon'ble Apex Court held that one
can take judicial notice that the margin of error in age ascertained by the
radiological examination is two years on either side. Hence, giving the
benefit of +2 years on the higher side, the victim would then be about 18
years of age at the time of the alleged rape committed on her. Further, I find
that in her trial on 03.10.2009, the prosecutrix had given her age as 25 years
and which is entered in the deposition format. Hence, the prosecutrix was
not a minor, on the date of alleged occurrence of rape on her.
17. So, for the aforesaid reasons this Court is of view to extend
benefit of doubt to the appellant Mustakim Ansari and acquits him of the
charges under sections 376 and 450 of Indian Penal Code.
18. Accordingly, the impugned judgment of conviction and order
of sentence both dated 17.06.2010 passed by the learned 1st Additional
Sessions Judge Giridih in Sessions Trial No. 217 of 2008 cannot sustain
and are set-aside. Appellant Mustakim Ansari is discharged from the
liability of bail bonds.
19. Accordingly, the appeal is allowed.
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi,
Dated:24/09/2021
Raja- NAFR
