Against The Judgment And Order Of ... vs The State Of Jharkhand
2022 Latest Caselaw 1733 Jhar

                    Cr. Appeal (D.B.) No. 758 of 2015
      [Against the judgment and order of conviction and sentence dated
      11.08.2015 (sentence passed on 20.08.2015) passed by Sri Ramesh
      Kumar Srivastava, learned Additional Sessions Judge-II, FTC, Bermo
      at Tenughat in Sessions Trial No. 407/2006, arising out of Nawadih
      P.S. Case No. 66/2006, corresponding to G.R. Case No. 624/2006 ]
                                   ...........

Kaushar Ansari, S/o Usman Ansari, R/o village- Sahriya Tola, Kochwatand, P.O. Nawadih, P.S.- Nawadih, District- Bokaro (Jharkhand) ... ... Appellant Versus

1. The State of Jharkhand

2. Khesma Khatoon, D/o Kamruddin Ansari, R/o Village Sahriya Kochwatand, P.O. + P.S.- Nawadih, District- Bokaro (Jharkhand) ... ... Respondents ...........

        For the Appellant             : Mr. Arwind Kumar, Advocate
        For the State                 : Mrs. Nehala Sharmin, A.P.P.
                                PRESENT
             HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE RAJESH KUMAR
                                   ...........

Per. R. Mukhopadhyay. J.: Heard Mr. Arwind Kumar, learned counsel for the appellant and Mrs. Nehala Sharmin, learned A.P.P. for the State.

      2.                   This        appeal   is   directed   against     the
      judgment     and   order    of    conviction   and    sentence      dated

11.08.2015 (sentence passed on 20.08.2015) passed by Sri Ramesh Kumar Srivastava, learned Additional Sessions Judge-II, FTC, Bermo at Tenughat in Sessions Trial No. 407/2006, arising out of Nawadih P.S. Case No. 66/2006, corresponding to G.R. Case No. 624/2006, whereby and whereunder the appellant has been convicted for the offence u/s 376 of the Indian Penal Code and has been sentenced to undergo R.I. for 10 years along with a fine of Rs. 10,000/- and in default of payment of fine he has been sentenced to undergo R.I. for a further period of 03 months.

3. A fardbeyan was recorded by Khesma Khatoon on 22.08.2006 in which it has been stated that Kaushar Ansari (appellant) had a tiff with his family as a result of which he started staying in a rented accommodation for the last eight months in a room situated in the house of the informant. It has been alleged that the accused used to regularly

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visit the house of the informant and also promised to marry her. Being allured by such promise the informant had established physical relationship with the accused. It has been alleged that such relationship continued frequently and when the parents of the informant had a whiff of such immoral activities the accused was ousted from his rented accommodation. After some days the informant could realize that she had become pregnant on account of such physical intimacy with the accused and when the accused was requested to solemnize marriage he started avoiding such proposal and ultimately threatened the informant and her parents and refused to solemnize marriage with the informant.

Based on the aforesaid allegations Nawadih P.S. Case No. 66 of 2006 was instituted against the accused Kaushar Ansari for the offence punishable u/s 376 of the I.P.C. On conclusion of investigation charge-sheet was submitted u/s 376 and 493 of the I.P.C. and after cognizance was taken the case was committed to the Court of Sessions where charge was framed u/s 376 of the I.P.C. which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as five witnesses in support of its case.

5. P.W.1 (Kasim Ansari) is the Sadar of Kochwatand Panchayat. He has deposed that in August, 2006 the father of the informant Kamruddin Ansari had come to his place and disclosed that Kaushar Ansari had continuously subjected his daughter to rape. A Panchayati was called in which the accused claimed himself to be innocent at which the Panches decided that both should undergo DNA test. The accused had deposited the required money but the informant did not and instead she had lodged a First Information Report.

In his cross-examination, this witness has proved the receipt which has been marked as "A". He has also stated that the informant had later on refused to undergo a DNA

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test. In the Panchayat, the allegation of committing rape was found to be false. According to this witness, the accused is innocent.

6. P.W.2 (Kamruddin Ansari) is the father of the informant who has stated that his daughter was subjected to rape by the accused. He has further deposed that the accused had stayed on rent in his house for eight months after which the room was got vacated from the accused. Due to the continuous physical intimacy his daughter had become pregnant. A Panchayati was held and both sides were directed to deposit Rs. 5,000/- each for conducting a DNA test but this witness did not deposit the said amount. He has stated that his daughter has a four month old child.

In his cross-examination, this witness has stated that the accused is a married person having children. The wife and the children of the accused had stayed in his house for about 2-3 months.

7. P.W.3 (Sandija Khatoon) is the mother of the informant who has deposed that she was informed by her daughter about the accused doing immoral acts with her on the assurance of marriage. When she started vomiting she was taken to a doctor who confirmed that her daughter is pregnant. The age of her daughter was 16 years. She has also disclosed that the accused was staying in her house on rent and he had also promised to marry her daughter but later on he refused. A Panchayati was called and when no result was visible the First Information Report was instituted.

In her cross-examination, she has stated that she has completed 22 years of her married life. The informant was born after one year of her marriage.

8. P.W.4 (Khesma Khatoon) is the victim as well as the informant of the case. She has disclosed her age as 16 years. She has stated that the accused used to stay adjacent to her house as he had left his own house after a quarrel with his

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parents. The accused used to come to her house and whenever he found her alone he used to tease her. The accused asked her to refrain from disclosing such facts to anyone and promised to marry her if anything untoward happened. She has stated that the accused after 3-4 days of stay at her house had offered her Laddoo and Prasad and after consuming it she felt sick. The accused thereafter had established physical relationship with her and she never objected since the accused had promised her marriage. She has also stated that the accused continued to establish physical relationship with her as a result of which she became pregnant. When this was disclosed to the accused he had given her some medicines and on consumption of which she started vomiting. Her parents had called a Panchayat but the accused refused to solemnize marriage. She has proved her fardbeyan which has been marked as Exhibit-1. Her statement was also recorded in the court in which she had signed (her statement u/s 164 Cr.P.C. was shown to her which does not bear her signature but has a thumb impression). She has stated that she had given birth to a boy who is now aged more than one year. She has claimed that the accused is the father of the child.

In her cross-examination, she has deposed that her age was 16 years when her statement was recorded in the court. She does not know in which year she was born. Before the accused had come to stay at her house on rent she had never conversed with the accused. She has also stated that the accused was already married and had children.

9. P.W.5 (Bhanga Oraon) is the Investigating Officer of the case who has deposed that on 22.08.2006 he had recorded the restatement of the informant. He had also recorded the statement of witnesses and had inspected the place of occurrence. On 29.08.2006, the informant was sent to Referral Hospital, Bermo and after her medical examination the report was received by him. He had also got recorded the 164 Cr.P.C.

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statement of the informant by the court. On completion of investigation he had submitted charge-sheet. He has identified the signature of the Officer-in-Charge Pramod Kumar Singh in the First Information Report which has been marked as Exhibit-2.

In his cross-examination, he has stated that there are four rooms in the house of the informant.

10. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has merely given a denial.

11. During the pendency of this appeal the appellant had filed I.A. No. 1381 of 2017 for conducting the DNA test of the appellant and the child as additional evidence. The said prayer was however rejected vide order dated 18.07.2017 though prior to the said order an order was passed on 04.05.2017 directing the trial court to take steps for conducting the DNA test of the appellant and the child. The report was subsequently submitted in which it was concluded that the appellant is the biological father of the child. However, since the prayer for additional evidence has already been rejected vide order dated 18.07.2017 the subsequent result of the DNA test would have no bearing in the merits of the case.

12. Mr. Arwind Kumar, learned counsel for the appellant has submitted that no case of rape is made out against the appellant. He has submitted that the evidence of P.W.4 clearly reveals that she had consented to the physical advancements made by the appellant. It has also been submitted that the tenor of her evidence nowhere indicates that the appellant had established physical relationship with her on the pretext of marriage. Mr. Arwind Kumar, learned counsel for the appellant has also referred to Section 375 of the I.P.C. and has submitted that the case of the appellant would fall under the category "sixthly" since admittedly the victim is aged more than 16 years.

13. Mrs. Nehala Sharmin, learned A.P.P. has vehemently opposed the prayer of the appellant and has submitted

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that the evidence of P.W.4 is supported by the evidence of her parents-P.W.2 and P.W.3. She has submitted that the evidence of P.W.4 being reliable and trustworthy and corroborated by other witnesses the appellant has rightly been convicted for the offence u/s 376 of the I.P.C. and sentenced accordingly.

14. We have considered the rival submissions and have also perused the Lower Court Records.

As per P.W.4 the appellant had offered to solemnize marriage with her if anything untoward happened on account of she being subjected to teases by the appellant. The incident of establishment of physical relationship seems to have occurred subsequently and there also the pretext of marriage has been cited by P.W.4 as the primary reason for her succumbing to the desires of the appellant.

In order to come to a conclusion as to whether P.W.4 was a consenting party or not to the sexual overtures made by the appellant the age of P.W.4 has to be considered. P.W.3 who is the mother of P.W.4 has stated that P.W.4 was born after one year of her marriage with P.W.2 which would indicate that P.W.4 was more than 20 years of age at the time of the incident. In fact the learned trial court has come to a conclusion that P.W.4 was more than 18 years of age at the time of the incident.

15. The learned trial court taking recourse to Section 90 of the I.P.C. has convicted the appellant for the offence u/s 376 of the I.P.C. Section 90 of the I.P.C. reads as follows:

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

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Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

It is the case of the prosecution that the purported consent given by P.W.4 is no consent as the same was given under a misconception of fact which is with respect to allurement of marriage.

It appears from the evidence of P.W.2 that the appellant had stayed at his house as a tenant for eight months before being ousted. The evidence of P.W.4 reveals that the appellant used to tease her with a promise to solemnize marriage if anything untoward happened and subsequently on the promise of marriage physical relationship was established. Though P.W.4 has stated at one place that she had never conversed with the appellant prior to his coming to stay at her house as a tenant but at the same time she has disclosed that the appellant is her cousin brother in relation. The same would indicate about P.W.4 being well acquainted with the appellant.

P.W.4 has also stated that the appellant was married having children and P.W.2 has also stated on similar terms. P.W.4 was therefore aware about the marital status of the appellant while she continued to have sexual relationship with him. In her cross-examination, P.W.4 has been very categorical in continuing to have such relationship though after his ouster as a tenant the appellant had refused to solemnize marriage with P.W.4. If at all there was a misconception in the mind of P.W.4 the same was at an early stage of the relationship but the belief of P.W.4 got cemented as even after being aware of the status of the appellant she never desisted in such physical relationship. Such fact circumstances, would not, therefore, attract Section 90 of the I.P.C. The learned trial court has not properly appreciated such facts while convicting the appellant for the offence u/s 376 of the I.P.C.

16. We are, therefore, of the view, that the prosecution has miserably failed to prove its case beyond any

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reasonable doubt and on such consideration we set aside the judgment and order of conviction and sentence dated 11.08.2015 (sentence passed on 20.08.2015) passed by Sri Ramesh Kumar Srivastava, learned Additional Sessions Judge-II, FTC, Bermo at Tenughat in Sessions Trial No. 407/2006, arising out of Nawadih P.S. Case No. 66/2006, corresponding to G.R. Case No. 624/2006.

17. This appeal is allowed.

18. Since the appellant is on jail he is directed to be released forthwith if not wanted in any other case.

19. Pending I.A., if any, stands disposed off.

(Rongon Mukhopadhyay, J.) I Agree

(Rajesh Kumar, J.) (Rajesh Kumar, J.)

High Court of Jharkhand at Ranchi Dated, the 2nd day of May, 2022.

Alok/NAFR