Rafique Ansari vs The State Of Jharkhand
2022 Latest Caselaw 548 Jhar

                                          1

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr. Appeal (S.J.) No. 244 of 2010
     (Against the judgment of conviction and order of sentence, both dated 04.03.2010,
     passed by the learned Sessions Judge, Godda in Sessions Case No. 199 of 2008)

      Rafique Ansari, son of Late Neruwa Ansari, resident of village-Sunder More, Pramukh
      Tola, PO and PS-Godda (M), District-Godda
                                                        .... Appellant
                     -Versus-
      The State of Jharkhand                           ......Respondent
                                      ------
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                  ------
    For the Appellant  :      Mr. Lukesh Kumar, Advocate
    For the State        : Mrs. Priya Shreshtha, Spl.P.P.
                          ------
    CAV ON: 13.08.2021                             PRONOUNCED ON: 18.02.2022

      RATNAKER BHENGRA, J.

Heard the learned counsel for the appellant and the learned counsel for the state.

2. This appeal is directed against the judgment of conviction and order of sentence both dated 04.03.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 199 of 2008, whereby and where under, the appellant has been convicted under section 417 IPC and sentenced to undergo simple imprisonment for one year with fine of Rs. 500/- and in default of payment of fine, appellant was to further undergo SI for fifteen days.

3. The prosecution case is based on the typed written report of the PW-2 informant/ victim (name concealed) which was given at Godda (M) Police station on 13.02.2008. Informant had in her written report stated that two months before the filing of the instant written report, she had gone to the in-law's house of her brother at village Pramukh Tola, Sundar More. The appellant is the brother-in-law (chachera sala) of her brother and had established physical relationship with the informant for the last two months on the pretext of marrying her. When the informant told the appellant to marry her, appellant was evading the same but continued physical relationship with her. On 27.1.2008 in the evening when the informant told the appellant to marry her, the accused appellant agreed to marry but co-accused Asruddin Ansari, who is the brother-in-law of her brother, forcibly dragged away the appellant Rafique Ansari and told that even if Rs. 1,00,000/- is paid, the accused appellant will not be allowed to marry with the informant. At this the informant talked to the mother, father and relatives of the appellant and the appellant again was ready to marry her. But again Asruddin Ansari, Safique Ansari, Sukra Ansari and Doman Ansari assaulted the appellant Rafique Ansari and hence appellant refused to marry with the informant.

4. On the basis of written report of the victim-informant, Godda (M) PS Case No. 43 of 2008 dated 13.02.2008 was registered under sections 376/109/34 of IPC against the appellant and four other accused persons. After the investigation, charge-sheet was

submitted against the appellant and the four other accused persons and cognizance of the offences were taken and the case was committed to the court of sessions. Charge was framed against the appellant under sections 376, 417 and 493 of IPC and regarding the other four accused persons, charge was framed under section 323 of IPC and trial was held. At the conclusion of the trial the four other accused persons were acquitted of the charge but the appellant was convicted and sentenced as aforesaid. Hence, this appeal.

5. Prosecution in support of its case has examined altogether nine witnesses out of whom PW-2 is the informant/ victim; PW-1 is Md. Ishaque Ansari; PW-3 is Shorab Ansari; PW-4 is Kurban Ansari; PW-5 is Biru Ansari, who is the brother of the victim; PW-6 is Mustkin Ansari, PW-7 is Rizwan, who is the another brother of the informant; PW-8 is Babulal Choudhary, who is the Investigating Officer of the case and PW-9 is Dr. Usha Singh.

6. PW-2 is the informant or the victim of the case. Informant had stated in her evidence that 15-20 days before 26.01.2008, she had gone to the forest for collecting wood. Rafique Ansari forcibly gagged her mouth with cloth, she cannot raise halla and then he raped her. Rafique Ansari continued to rape her once in every 4-5 days for two months. Thereafter, she came to Fudan Tola, then appellant also came to Fudan Tola. He used to sit on a seat (pidha) outside her house in the night and whenever she used to come out of her house, Rafique Ansari used to do wrong thing forcibly with her. One day Rafique Ansari took her to Pramukh Tola. She told him to marry her otherwise she will not stay there. Informant further stated that panchayati was held and it was decided that Rafique Ansari will marry her, but, appellant's father told he will not allow the marriage. In her cross-examination informant stated that Rafique Ansari was in love with her and he never refused to marry her. Informant further stated that for the first time before the Court she had disclosed that Rafique Ansari had committed rape on her in the forest and did wrong things with her once in every 4-5 days for two months. She was married and her husband was suffering from Epilepsy and hence, the talak took place.

7. PW-5 Biru Ansari and PW-7 Rizwan are the brothers of the victim. PW-5 has stated that his sister had talked to Rafique Ansari for her marriage with Rafique. Rafique Ansari took her sister to his house where Safique Ansari and Sukra Ansari assaulted her. They told that they will not allow the marriage of Rafique with the victim girl. Thereafter, panchayati was held in which five persons from his side participated, but, Rafique was told not to accept the verdict of panchayati. Rafique Ansari stayed with his sister on assurance of marrying her but thereafter Rafique denied the marriage. When marriage was not agreed in panchayati, then his sister instituted the case in the police station. PW-7 had stated in his evidence that Rafique wanted to marry with his sister and he used to visit his house. PW-7 also stated that Rafique had taken the victim to his house.

8. PW-9 Dr. Usha Singh had examined the victim on 13.2.2008. She did not find any external injury on any part of her body. On internal examination, she did not find any foreign hair or tenderness at or around private part of the victim. Microscopic examination of vaginal swab revealed absence of spermatozoa. Doctor opined that she

could not give any definite opinion regarding the recent sexual contact of the victim. The medical report of the victim was proved by the doctor which was marked as Ext.-5. In her cross-examination doctor stated that the fact that vagina was admitting two fingers loosely shows that the patient was habituated to sexual intercourse.

9. PW-8 Babulal Choudhary is the Investigating Officer of the case. Investigating Officer had stated in his evidence that he had sent the victim for medical examination by preparing the requisition. Investigating Officer had proved the requisition prepared by him which was marked as Ext.-2. Investigating Officer had proved the endorsement on the written report which was marked as Ext.-3.

10. PW-1 Md. Ishaque Ansari, PW-4 Kurban Ansari and PW-6 Mustkin Ansari have stated in there evidence that they had gone for panchayati as Rafique had refused to marry the informant. PW-1 has recognized his signature on panchnama which was marked as Ext.-1.

ARGUMENTS ADVANCED ON BHEALF OF THE APPELLANT:

11. The learned counsel for the appellant submitted that the case is doubtful because of delay nature of the FIR. Learned counsel submitted that as per written report occurrence of sexual relationship took place two months prior to the lodging of the FIR on 13.2.2008 and therefore, the delay in lodging the FIR raises great suspicion. He further pointed out Paragraph -9 of the informant's cross-examination where she deposed that she does not know what was written in the written report. Therefore, the learned counsel says that if informant does not know what is the content of the written report, then how is she making any allegations against the appellant, particularly, the kind of allegations she has made against the appellant becomes doubtful. Therefore, on the basis of lack of knowledge about contents of the written report and delay nature of the FIR, the case against the appellant should collapse.

12. Learned counsel further argued that though other prosecution witnesses have supported the prosecution case but it is important to examine the victim-informant particularly of her evidence being unreliable in nature. Learned counsel further submitted that victim has made allegations that the appellant had taken her to the jungle on 26.1.2008 and committed some wrong act with her, but, this is not at all in the FIR. Informant has also in her evidence indicated that appellant used to sit outside her house in Fudan Tola and when the victim comes outside of her house, he forcibly did wrongful acts with her. This also seems unbelievable because it is not possible to believe that wrongful acts could be committed just outside the house. From the evidence of informant and other prosecution witness it appears that the appellant himself did not deny marriage but it was more so on the part of his father and other relatives that they made it difficult and not possible for the appellant to get married to her.

13. Learned counsel also argued that in her evidence the victim had deposed that she was assaulted, when she had gone to the house of the appellant, by Safique and Sukra. But the doctor had found no injury on the person of the informant which also creates doubt. Learned counsel further says that in para-6 and 9, informant had deposed that she does not know who had made the written report and its content and therefore,

learned counsel submits that this itself demolishes the prosecution case totally.

14. Learned counsel further submitted that it is revealed from paragraph no.- 11 of the evidence of the informant that she was already married and thus, counsel says that informant was already having past experience of unsuccessful marriage and therefore she was determined to get married to the appellant at any cost and when she realised that this may not be possible then she decided to file the case against the appellant. In such situation the appellant himself cannot be blamed because informant had unsuccessful marriage and being in such a situation she lodged a false written report against the appellant. Learned counsel further submitted that from the evidence of the Investigating Officer also, it has been disclosed that the Investigating Officer had gone to the house of the appellant and had seen the place where informant had alleged that she was living but the Investigating Officer had not found evidence of living the informant and the appellant together in the room.

ARGUMENTS ADVANCED ON BHEALF OF THE STATE:

15. Learned counsel for the State-APP submits that this is a case in which serious allegations were made against the appellant and the offences are sexual in nature and also of cheating, which attracts section 417 of the IPC. Learned APP has read out section 415 IPC which is reproduced herein below:

417. 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.

16. Learned APP further submitted that the offence in which the appellant has been convicted is fully made out. Learned APP has pointed to the evidences of PW-2 victim and PW-5, who is the brother of the victim and submitted that both have stated that informant was sexually exploited on the pretext of marriage by the appellant. PW-9 Dr. Usha Singh had opined that the victim is habituated to sexual intercourse and it means that the appellant used to make physical relationship with the victim regularly. All the other prosecution witnesses have also supported the prosecution case. Learned APP also submitted that the evidence of the Investigating Officer does not demolish the case of the prosecution against the appellant.

17. Learned APP has further referred to the evidence of the victim and said that she in her evidence had narrated that in the forest wrongful acts was committed upon her. In paragraph-9 victim had reiterated that she was raped and, therefore, there is no reason by which the appellant can escape the conviction.

18. Referring to the evidence of PW-5, who is the brother of the victim, learned APP had pointed out paragraph-3 of his evidence and submitted that informant was assaulted in the house of the appellant. Learned APP further pointed out para-4 of

his evidence and submitted that appellant had refused to marry her but appellant lived with the victim for 2-4 months as a family. Even appellant had agreed to marry at the police station and had furnished bond in this regard but, later on again appellant started making excuses. Therefore, counsel for the State submitted that it fully indicates that the appellant had promised to marry the informant but, later on retracted and therefore, deceived and played fraud upon the informant and hence, conviction under section 417 IPC is fully made out. Therefore, the impugned judgment of conviction and order of sentence passed by the learned court below shall be sustained and upheld by this court. FINDINGS:

19. Having heard learned counsels for both sides, having gone through the records of the case and evidences, in this case, I find that whole case hinges around the issue of marriage between the victim informant and the appellant. Informant in her written report had stated that appellant had established physical relationship with her on pretext of marrying her for which charge was framed under section 417 of IPC against the appellant as to deceiving the informant by fraudulently inducing her to have sexual intercourse and for which appellant was ultimately convicted under section 417 of IPC by the learned trial court. Here, it is pertinent to note that appellant was also charged under sections 376 and 493 of IPC, but was acquitted of these charges by the learned trial court. Issue of marriage between the informant and appellant did not stop here and four other family members of the appellant were also made accused under section 376/109/34 of IPC in the FIR along with the appellant. These four accused persons were tried for the offence under section 323 and were acquitted by the learned court below.

20. Appellant has been convicted under section 417 of IPC. Cheating has been defined under section 415 of IPC and so far as the case in hand is concerned prosecution has to prove that appellant had intentionally induced the victim to do or omit to do anything which victim would not do or omit if victim was not so deceived. In the written report of the informant, I find that informant in her written report had alleged that appellant had established physical relationship with her on pretext of marrying her. But, on going through the deposition of the informant, I find that informant had reversed her statement during the trial and for the first time during the trial, informant had deposed or revealed that when she had gone to the forest for taking wood, there appellant had gagged her mouth and raped her. So, due to varying statement of the informant in her written report and in her deposition, this court is of the view that no weightage can be given to the evidence of the informant. Therefore, intentional inducement on pretext of marriage cannot be proved by the prosecution as the prosecution case commenced with the establishing of physical relation on pretext of marriage with the informant and ended in the allegation of rape. Hence, the facts and evidence on record in the case in hand, when seen in the light of provisions of section 415 of IPC, there is no sufficient evidence to hold the charge under section 417 of IPC against the appellant.

21. From the written report, also, an element of consensuality is indicated

between the two sides. Further, the doctor has pointed out that she was also used to sexual intercourse or habitual in it. Given, what I have earlier stated about the untrustworthyness of the informant, these additional circumstances also add to doubt about the allegations, hence much doubt is created about the allegation.

22. Accordingly, the impugned judgment of conviction and the order of sentence both dated 04.03.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 199 of 2008 cannot sustain are hereby set-aside. The appellant Rafique Ansari is on bail and he is discharged from the liability of bail bonds furnished by him.

23. Accordingly, the appeal is allowed.

(Ratnaker Bhengra,J) Jharkhand High Court,Ranchi Dated the N.A.F.R./Nibha