Waris Hussain vs The State Of Jharkhand
2023 Latest Caselaw 1592 Jhar

                              1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Revision No. 751 of 2021
                        ....
Waris Hussain, aged about 39 Years, son of Md. Sabir Hussain,
resident of Jama Masjit Road, P.O. & P.S. Sadar, District
Hazaribag, Jharkhand.                          ...... Petitioner
                        Versus
1.The State of Jharkhand
2. Sanober Naaz, daughter of Late Nurul Hoda Gose, resident of
Jama Masjid Road, P.O. & P.S. Sadar, District Hazaribagh.
                                         ......          Opp. Parties
                           -----
                        PRESENT
CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
                          -----
For the Petitioner      : Mr. Rahul Kumar, Advocate
For the State           : Mr. Satish Prasad, A. P. P.
For the O.P. No.2       : Mr. Shailendra Jit, Advocate
                        ......
                   JUDGMENT

CAV on:16.08.2022 Pronounced on 13/04/2023

This Criminal revision application has been filed on

behalf of the petitioner challenging the order dated 04.12.2021

passed by Sri Shatrunjay Kumar Singh, the learned Ist Additional

Sessions Judge-cum-Fast Track Court for Rape Cases, Hazaribagh

in S. T. Case No.307 of 2018 arising out of Hazaribag (Sadar) P. S.

Case No.492 of 2017 (G.R. Case No.1934 of 2017) by which the

discharge petition filed on behalf of the petitioner has been

rejected.

2. The prosecution case, in brief, is that on 05.05.2001 while

the informant (prosecutrix) was alone in the house and other

family members had gone outside then at around 9.00 p.m in the

night her relative Waris Hussain i.e. the petitioner came to her

house and forcibly committed rape upon her and when she tried to

commit attempt of suicide then he caught hold of her and assured

of performing marriage (Nikah) with her.

It has been stated that the prosecutrix is a married lady

and her Nikah was performed with Md. Jawed and on the

assurance of the petitioner, she took Khula from Md. Jawed.

Thereafter the petitioner had been sexually exploiting her and

assured her of marriage. However, when she learnt that the

petitioner namely Waris Hussain is going to perform Nikah at

Ranchi then she tried to contact him on mobile but he blocked her

mobile.

3. Heard learned counsel for the petitioner and the learned

A.P.P appearing on behalf of the State.

4. It has been submitted by learned counsel for the petitioner

that the impugned order dated 04.12.2021 passed by the learned

Additional Sessions Judge, Ist, Hazaribagh is illegal and not

sustainable in the eye of law. It has been submitted that the learned

trial court has committed grave illegality by rejecting the discharge

petition filed on behalf of the petitioner.

It has been submitted that there is no evidence on record

which makes out a case against the petitioner. It has been

submitted that the statements recorded by the prosecution under

section 161 Cr. P. C and the evidences relied by the prosecution

do not disclose anything suggesting the involvement of the

petitioner. It has further been submitted that there is no evidence

as against the petitioner to hold the petitioner guilty of the alleged

offence. It is submitted that the F.I.R has been lodged after great

delay of 16 years. Hence, the impugned order dated 04.12.2021

passed by the learned trial court may be set aside.

5. On the other hand learned A.P.P. appearing for the State

has submitted that there is direct allegation against the petitioner

of committing rape upon the informant i.e. the prosecutrix and for

sexually exploiting her.

6. The learned counsel for O.P. No.2, after adopting the

submission of the learned A.P.P, has further submitted that the

petitioner has committed heinous offence. It has been submitted

that the learned Additional Sessions Judge, Ist, Hazaribagh has

considered the materials available against the petitioner while

passing the impugned order. It has been submitted that the

informant during her re-statement at paragraph 2 and the witnesses

namely, Md. Sahid and Tabbirul Hoda Gose whose statements

have been recorded at paragraphs 5 and 6 of the case diary, have

fully supported the prosecution case. It has been submitted that

paragraph 25 is the details of call recording of the talk between the

petitioner and the informant which have been reduced to writing

and paragraph 61 of the case diary contains the statement of the

victim lady recorded under section 164 Cr. P. C.

It has been submitted that the victim lady has supported the

allegation while recording her statement under section 164 Cr.P.C

and hence no interference is required from this Court and the

criminal revision application may be dismissed.

7. Perused the F.I.R, Lower Court Record and considered the

submissions made on behalf of the learned counsel for the parties.

8. It transpires from the F.I.R that the informant is a major

lady and at the time of commission of alleged offence in the year

2001 she was a married lady.

9. It further transpires that there is allegation of committing

rape upon the informant on 05.05.2001 and subsequently she

continued her physical relationship with the petitioner for several

years, however, the F.I.R was lodged on 09.07.2017 i.e. after delay

of more than around sixteen years.

10. It appears that the victim girl was aged around forty (40)

years when her statement was recorded under section 164

Cr. P. C on 07.10.2017. Even as per the medical report the age of

the victim has been assessed by the doctor between 30 to 35 years.

11. It has been observed in several judgments of Hon'ble

Supreme Court that institution of F.I.R after living in physical

relationship for a long period may not give rise to commission of

rape.

12. The Hon'ble Supreme Court in the case of Pramod

Suryabhan Pawar vs. State of Maharashtra & Anr. reported in

(2019) 9 SCC 608 at paragraph 18 as follows:-

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

13. On the facts and in the circumstances mentioned above

and in view of the law laid down by Hon'ble Supreme Court, the

impugned order dated 04.12.2021 passed by Sri Shatrunjay Kumar

Singh, the learned Ist Additional Sessions Judge-cum-Fast Track

Court for Rape Cases, Hazaribagh in S. T. Case No.307 of 2018

arising out of Hazaribag (Sadar) P. S. Case No.492 of 2017 is set

aside in the interest of justice and the case is remitted back to the

learned court below for passing a fresh order in accordance with

law after giving reasonable opportunity of hearing to both sides.

14. Thus, the instant criminal revision is allowed with the

observation and direction made above.

(Sanjay Prasad, J.) Saket/

N.A.F.R