Jharkhand High Court
(Against The Judgment Of ... vs Sujat Ali @ Banti on 3 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 43 of 2008
(Against the judgment of acquittal dated 16th July 2008 passed by the learned Additional
Sessions Judge, Fast Track Court No.2nd, Jamshedpur in Sessions Trial Case No. 287 of
2007)
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The State of Jharkhand ...... Appellant
Versus
Sujat Ali @ Banti, son of Murtaza Ali, resident of Toila Dugari, House
No.314, Pani Tanki Road, PO and PS: Golmuri, District: East Singhbhum at
Jamshedpur. ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Ravi Prakash, Spl.P.P.
For the Respondent : Mr. Faisal Allam, Advocate;
Mr. Shravan Kumar, Advocate
For the Informant : Mr. S.K. Lall, Advocate
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Oral Order
rd
3 April 2023
Per, Shree Chandrashekhar,J.
This Acquittal Appeal has been filed by the State of Jharkhand
challenging the judgment dated 16th July 2008 passed in Sessions Trial
Case No. 287 of 2007 by which Sujat Ali @ Banti has been acquitted of the
criminal charge under section 376 of the Indian Penal Code.
2. Sitaramdera PS Case No. 75 of 2006 was lodged on the basis of
written report of the victim girl given to the officer-in-charge of Sitaramdera
police station on 4th July 2006. The victim girl has made allegation against
the respondent of inducing her to have sexual relationship on the pretext of
marriage, who after eleven months of cohabitation refused to marry her.
3. In the trial, prosecution has examined thirteen witnesses out of
whom PW11 is the victim girl.
4. Mr. Ravi Prakash, the learned Spl.P.P. has contended that the
learned Additional Sessions Judge has observed that as many as eleven
prosecution witnesses have supported the prosecution story and nothing
contradictory could be elicited from them in their cross-examination and,
therefore, the judgment of acquittal is flawed in law.
2 Acquittal Appeal No.43 of 2008
5. Mr. Faisal Allam, the learned counsel for the respondent has
referred to the judgment in "Maheshwar Tigga v. State of Jharkhand"
(2020) 10 SCC 108 to submit that a young woman who stayed with the
respondent for about eleven months cannot turn around and say that her
consent for physical relationship was obtained by playing fraud.
6. In "Maheshwar Tigga" 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."
7. PW13 Dr. Nutan Dayal who clinically examined the victim girl
on 4th July 2006 did not find any external injury over thigh, buttocks or
perineum of the victim girl. The FSL report of the vaginal swab did not
indicate the presence of any spermatozoa. According to the radiological
findings, age of the victim girl was assessed more than 19 years.
8. We have carefully gone through the testimonies of the
prosecution witnesses and find that except the victim girl no witness has
spoken about enticing or alluring the victim girl by the respondent. All that
the prosecution witnesses have stated is that there was friendship and love
affair between the victim girl and the respondent. In her statement in the
3 Acquittal Appeal No.43 of 2008
Court, the victim girl has admitted that she stayed with the respondent for
about eleven months in a rented house at Kalyan Nagar in Hume Pipe Basti.
In her cross-examination, she has admitted that her parents, brother and
sister were aware of her relationship with the respondent and; she never
complained against the respondent having physical relationship with her.
The parents of the victim girl have also admitted in the Court that they never
made any complaint against the respondent to the police. They further
admitted that their daughter and the respondent stayed in a rented house for
eleven months as husband and wife. The learned Additional Sessions Judge
has also taken note of the delay in lodging First Information Report
inasmuch as the first episode of the occurrence had started in the month of
July 2005 but a written complaint was given on 4th July 2006.
9. In "Uday v. State of Karnataka" (2003) 4 SCC 46 the Hon'ble
Supreme Court has held that the prosecutrix who was in love with the
accused consented for sexual intercourse on promise of marriage cannot be
said to have been given such consent under misconception of fact. In
"Uday" the Hon'ble Supreme Court has observed as under:
"21. It therefore appears that the consensus of judicial opinion is
in favour of the view that the consent given by the prosecutrix to
sexual intercourse with a person with whom she is deeply in love
on a promise that he would marry her on a later date, cannot be
said to be given under a misconception of fact. A false promise is
not a fact within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is no straitjacket
formula for determining whether consent given by the prosecutrix
to sexual intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid down
by the courts provide at best guidance to the judicial mind while
considering a question of consent, but the court must, in each
case, consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each case
has its own peculiar facts which may have a bearing on the
question whether the consent was voluntary, or was given under a
misconception of fact. It must also weigh the evidence keeping in
view the fact that the burden is on the prosecution to prove each
and every ingredient of the offence, absence of consent being one
of them."
10. The learned Additional Sessions Judge has extensively referred
to the evidence tendered by the victim girl and her family members to come
to a conclusion that the victim girl was above the age of eighteen years on
the date of occurrence and there is nothing in the prosecution evidence to
infer that her consent was obtained on a false pretext of marriage.
4 Acquittal Appeal No.43 of 2008
11. The learned Sessions Judge has appreciated the prosecution
evidence in this regard in the following manner:
"8... ... ... ... ... ... ...... ... ...
P.W.11 Puja Das (informant & victim) was examined in the court
on 9th April, 2008 and on that day, she has told his age as 19
years. According to this witness at the time of beginning of
occurrence (i.e. in July,2005) she was more than 16 years of age.
Further P.W.4 is brother of informant. This witness has told that,
informant Puja Das is younger to him and her age is 4 to 5 years
less to his age. This witness was examined on 16 th January 2008
in court and he has told his age 28 years, and according to him at
the beginning of occurrence his age was 25 years. As per
statement of this witness the age of Puja Das is 4 to 5 years less
than his age. So, according to this witness at the beginning of
occurrence the age of victim Puja Das was about 20 or 21 years.
Further as per statement of Dr. (P.W.13) and medical report of
informant Puja Das (Ext.2 & 2/1) at the time of examination of
informant Puja Das by Dr. on 04.07.06 the age of informant Puja
Das was more than 19 years. Thus, according to statement of
P.W.13 and ext. 2 & 2/1 at the beginning of occurrence (i.e. on
July 2005) the age of Puja Das was more than 18 years. The
statements of P.W. 13 and ext. 2 & 2/1, regarding the age of
informant Puja Das is based on scientific investigation of
Radiologist. So, the statement of P.W.13 ext. 2 and 2/1, regarding
the age of informant at the time of beginning of occurrence is
more reliable and believable, and thus I find that, at the time of
beginning of occurrence the informant (victim) was more than 18
years of age, and she was major. If a person has sexual
intercourse with woman with her consent, when she is under 16
years of age is rape U/s 375 of I.P.C. But in this case it has been
already find by me that, at the beginning of occurrence the
informant was more than 18 years. Further as per statement of
informant herself her age was more than 16 years at the time of
beginning of occurrence. It has been already find above that, the
informant (victim) fell in love with above named accused with his
free-will and she went with above named accused and lived with
him with her consent and free-will, and the accused did
intercourse with her consent. Thus, I find that in this case offence
of rape as defined U/s 375 of I.P.C. and punishable U/s 376 of
I.P.C. does not attract. Therefore, on careful consideration of the
evidences of prosecution and in view of my above findings, I find
and hold that the prosecution has not succeeded to prove charge
of offence U/s 376 of I.P.C against above named accused beyond
all reasonable doubts. Therefore, I find and hold that, the above
named accused is not guilty for charge of offence U/s 376 of
I.P.C, and the above named accused is acquitted for charge of
offence U/s 376 of I.P.C. The above named accused and is
sureties are also discharged from liabilities of their bail bonds."
12. Having thus examined the materials on record, we do not find
any ground to interfere with the judgment of acquittal rendered in Sessions
Trial Case No. 287 of 2007 in favour of Sujat Ali @ Banti and, accordingly,
Acquittal Appeal No. 43 of 2008 is dismissed.
13. Let the lower Court records be sent to the Court concerned
5 Acquittal Appeal No.43 of 2008
forthwith.
14. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 3rd April, 2023
S.B./Nibha-N.A.F.R
