Anguri Khatoon @ Angoori Khatoon vs The State Of Jharkhand
2023 Latest Caselaw 1444 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Appellate Jurisdiction)

                     Acquittal Appeal No. 24 of 2014

Anguri Khatoon @ Angoori Khatoon, D/o Md. Shafiq Alam, resident of
Ramkole, PO and PS Hanwara, District Godda      ...... Appellant
                                Versus
1. The State of Jharkhand
2. Md. Izahar Alam, son of Shekh Zahiruddin, resident of Samri, PO and PS
Mahagama, District Godda                               ...... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant        :   Mrs. Abha Verma, Advocate
For the State            :   Ms. Nehala Sharmin, Spl. PP
                              --------------
                                                             ORDER

03rd April 2023

Per, Shree Chandrashekhar, J.

The victim girl has filed this acquittal appeal against the judgment dated 25th September 2014 passed in Sessions Trial No. 268 of 2013.

2. By the aforesaid judgment, the trial Judge has acquitted Md. Izahar Alam from the charges framed against him under sections 363 and 366 of the Indian Penal Code.

3. On the basis of an order passed by the Court under section 156(3) of the Code of Criminal Procedure, Hanwara PS Case No. 55 of 2013 was lodged on 2nd July 2013 against the respondent and others under sections 120-B, 366-A, 376, 498-A and 406 of the Indian Penal Code. The allegation against the respondent is that he seduced the victim girl to elicit intercourse and compelled her to marry against her will on 18 th April 2013. After completion of the investigation and laying charge-sheet on 31 st August 2013 for commission of the offence under sections 363 and 366 of the Indian Penal Code, the prosecution produced 10 witnesses during the trial to prove the aforesaid charge against the respondent.

4. PW2, PW3, PW4, PW5, PW8 and PW9 who are the co-villagers did not support the prosecution story and were declared hostile.

PW1 Mausam Jahan Ara who is the mother and PW6 Md. Safique who is the father of the prosecutrix have tried to support her while tendering evidence in the Court. However, PW1 and PW6 have made such admissions in the Court which were found sufficient by the trial Judge to record the judgment of acquittal of the respondent in Sessions Trial No. 268 of 2013.

5. No doubt the appellate Court exercises same powers while dealing with an appeal against the judgment of acquittal and can reappreciate the evidence and reverse the findings recorded by the trial Court, there are judicially evolved parameters which are required to be kept in mind.

6. In "Ghurey Lal v. State of U.P." (2008) 10 SCC 450 the Hon'ble Supreme Court has observed as under :

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. 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."

7. The victim girl has deposed in the Court that she was enticed by the respondent and taken to Dumka where he sexually assaulted her. She has further stated that when she started crying the respondent consoled her and promised to marry her but has failed to keep his promise and abandoned her at village Jamaidih. As PW7, the victim girl has made allegation of threat by the respondent and holding of a Panchayati in the village in which both parties agreed that the respondent shall solemnize marriage with her and accordingly on 19th April 2013 her marriage was solemnized with the respondent at Milki Madarsa in presence of about 200 villagers. However, later on the respondent resiled from his promise and did not agree for her gauna and his family members demanded Rs. 5,00,000/- in dowry. In the meantime, a talaknama dated 24th May 2013 was prepared and sent to her. Therefore, compelled, she lodged a complaint case on the basis of which the

aforesaid First Information Report was lodged against the respondent and others.

8. In her cross-examination, PW7 has admitted that she accompanied the respondent on her own and while travelling to Godda she crossed many villages such as Milki, Narreni, Nayanagar, Osta, Kasba, Longai and Mahgama etc. She has further admitted that on way to Godda she had crossed Mahgama PS and Pathargama PS. However she did not speak to anyone or made any complaint against the respondent. The learned trial Judge has taken note of the statements made by PW1 that her daughter was away for two nights but she did not make any complaint to the police. PW6 has also admitted in the Court that he made statement before the police that the respondent was in love with his daughter.

9. The learned trial Judge has held as under :

"21....................In the present case, the evidence as discussed above clearly shows that the victim girl herself admitted that she went voluntarily and she remained with accused in his rented house,she did not raise any objection while moving with the accused either on his motorcycle or in a bus. Besides she did not tell to neighbouring people at Dumka during journey to different places. All such circumstances clearly support that victim girl was not kidnapped either for compelling to marry her against her will or to have intercourse with her and as such the case laws filed by the defence fully supports this case. It is also proved form the evidence that admittedly the victim girl at the time of occurrence was aged about 18 years and as such she was not minor at the time of occurrence and hence, no case U/s 363 and 366 I.P.C are made out.

22. On critical analysis of the evidence brought on the record, I find that neither informant nor her mother and father have supported the prosecution case of kidnapping or kidnapping with intent to marry or seducing victim to illicit intercourse have been proved. The evidence of the witnesses are all contradictory and not reliable. Accordingly, I find that prosecution has failed to prove its case.

23. Having considered the above facts,circumstances and evidence on the record,I arrive at the conclusion that the prosecution failed to prove its case as well as the charge levelled against the accused beyond all reasonable and probable shadow of doubts. Accordingly it is ordered ordered:-

24. ORDER Accused, namely, Md.Izhar Alam is not found and held guilty to the charges U/s 363 and 366 IPC and accordingly acquitted thereof and he is in Judicial custody hence directed to be released forthwith, if not wanted in any other case."

10. The offence under section 363 of the Indian Penal Code refers to kidnapping from lawful guardianship.

11. As noticed above, the prosecution has failed to establish that PW7 was below the age of 16 years, she was enticed away by the

respondent and was taken out from the legal guardianship of her parents.

12. The offence under section 366 of the Indian Penal Code pre-supposes absence of consent on the part of the kidnapped/abducted girl. The trial Judge has referred to paragraph no. 8 of cross-examination of the victim girl and evidence of PW1 and PW6 to arrive at a conclusion that the victim girl on her own left home and had accompanied the respondent to Samri. There is no evidence except the statement of the victim girl that she who is a major did not consent for sexual intercourse with the respondent. The prosecution has failed to produce any evidence of forceful intercourse by the respondent with the victim girl. Rather, the victim girl has admitted in the Court that on way to Godda and while coming back she did not raised any hulla, did not lodged any complaint at the police station and has filed the complaint case only after talaknama was served upon her.

13. In "Maheshwar Tigga v. State of Jharkhand" (2020) 10 SCC 108 the Hon'ble Supreme Court has observed as under:

"20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday are considered relevant : (SCC p. 58, para 25) "25. ..... It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.""

14. Having thus discussed the aforesaid facts and circumstances of the case, we find no ground to interfere with the judgment of acquittal passed in Sessions Trial No. 268 of 2013 and, accordingly, Acquittal Appeal No. 24 of 2014 is dismissed.

15. Let the lower Court records be transmitted to the Court concerned, forthwith.

16. Let a copy of the Judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 03rd April 2023 Tanuj/ NAFR