Hasina Khatoon vs The State Of Jharkhand
2023 Latest Caselaw 1591 Jhar

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

                      Acquittal Appeal No. 26 of 2020

Hasina Khatoon, wife of Md. Hussain Ansari, resident of Rahmat Nagar,
Makhdumpur, PO Makhdumpur, PS Balidih, District Bokaro, Jharkhand
                                                    ...... Appellant
                                   Versus
1.The State of Jharkhand
2.Md. Arif Siddiqui, son of late Md. Moin Siddiqui, resident of Gous Nagar
(Makhdumpur), PO Makhdumpur, PS Balidih, District Bokaro, Jharkhand
                                                         ...... Respondents

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

For the Appellant           :   Mr. Mahesh Kumar Sinha, Advocate
For the State               :   Mr. Vandana Bharti, APP
                                 --------------
                                                                   ORDER

13th April 2023

Per, Shree Chandrashekhar, J.

The judgment in Sessions Case No. 89 of 2019 has been challenged by the informant Hasina Khatoon on the ground that on mere minor inconsistency in her evidence the learned trial Judge has recorded the judgment of acquittal.

2. Mr. Mahesh Kumar Sinha, the learned counsel for the appellant submits that the testimony of a victim of sexual assault stand alone is sufficient to record conviction of the respondent. The learned counsel has submitted that the victim of sexual assault is considered an injured witness whose testimony is put on a higher pedestal (vide, judgment dated 29 th March 2023 of the Hon'ble Supreme Court passed in Criminal Appeal No.1910 of 2010 titled "Balu Sudam Khalde and another v. The State of Maharashtra").

3. In paragraph no.26 of the judgment, the Hon'ble Supreme Court has held as under:

"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:

(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."

4. The case of the prosecution is that the informant who is a widow was in relationship with Md. Arif Siddiqui since the year 2009. The prosecutrix has stated that on a false pretext of finding a suitable boy for her daughter Md. Arif Siddiqui succeeded in establishing sexual relationship with her. This part of her story has been corroborated by her daughter who was examined as PW6. This witness has stated in the Court that on different pretexts the respondent has taken money amounting to Rs. 7 Lakhs from her mother. But she has admitted in the cross-examination that there was a dispute between her mother and the respondent in this regard.

5. No doubt the evidence of the victim of sexual crime is sufficient to record conviction of the respondent provided her evidence is of such sterling quality which admits no doubt on the prosecution's case and is free from all probabilities exonerating the respondent. However the evidence of the victim is not like a gospel truth on the basis of which the Court under every circumstance is bound to hold the respondent guilty. The materials on record do not indicate that the sexual relationship between the prosecutrix and the respondent was not consensual. The prosecutrix is of the matured age, she was a widow with young daughter of marriageable age. Having regard to these facts, it is not possible to hold that she did not consent for sex with the respondent. Furthermore, no other witness except the daughter of the prosecutrix has come forward to say anything about the occurrence. Not even a villager has come forward to depose in the Court to corroborate the story of the prosecutrix.

6. 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.""

7. In this context the judgment in "Uday v. State of Karnataka" (2003) 4 SCC 46 is also relevant to examine the truthfulness in the story of sexual assault floated by the informant.

8. 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."

9. There are certain judicially evolved parameters to test the legality of the judgment of acquittal rendered by the learned trial Judge. But before the Appellate Court decides to interfere with a judgment of acquittal it is required in law to record a finding that there are compelling reasons arising out of over looking of some vital evidence on the record which warrants interference with the judgment of acquittal.

10. In "Bhadragiri Venkata Ravi v. High Court of A.P." (2013) 14 SCC 145 the Hon'ble Supreme Court has held as under:

"25. This Court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

11. Having found so, we find no ground to interfere with the judgment of acquittal recorded in Sessions Case No. 89 of 2019 and, accordingly, Acquittal Appeal No. 26 of 2020 is dismissed.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 13th April 2023 Tanuj/ NAFR