Jharkhand High Court
"X" (Name Masked By The Court) vs The State Of Jharkhand on 18 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No.43 of 2022
"X" (name masked by the Court), w/o Sukhdev Paswan, aged about
30 years, r/o Mangrodih, PO Dandidih, PS-Giridih,(Muffassil), District-
Giridih ...... Appellant
Versus
1. The State of Jharkhand
2. Ashok Paswan, s/o Bajo Paswan, r/o Mohalichua, near Subhash Public
School, PS-Giridih(T), PO & District-Giridih ...... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Yogesh Modi, Advocate
For the State of Jharkhand : Mr. Vishwanath Ray, APP
--------------
ORDER
18th April 2023
Per, Shree Chandrashekhar, J.
I.A. No.8138 of 2022
In view of proviso to section 372 of the Code of Criminal
Procedure, I.A No. 8138 of 2022 is allowed.
Acquittal Appeal No.43 of 2022
By virtue of an order passed under section 156 (3) of the Code
of Criminal Procedure, Giridih (M) PS Case No.152 of 2019 was lodged
against the respondent no.2 on 9th July 2019 under section 376 of the Indian
Penal Code.
2. The prosecutrix who has claimed that she was a victim of
sexual offence at the hands of Ashok Paswan (the respondent no.2) is
aggrieved of the judgment of acquittal dated 16 th June 2022 passed in S.T.
No.20 of 2021.
3. In the trial, the respondent no.2 was charged under
section 376/427 of the Indian Penal Code and to support the charge the
prosecution has examined 4 witnesses out of whom PW1 who is the
husband and PW2 and PW3 who are the neighbours of the prosecutrix have
turned hostile. When these witnesses were examined in the Court they have
flatly refused to have any knowledge about the occurrence. PW4 is the
Magistrate who has recorded statement of the prosecutrix under
section 164 of the Code of Criminal Procedure.
4. On appreciation of the materials on record, the trial Judge has
held as under:
"11. No other witness has been examined by the prosecution
despite being given sufficient opportunity. Even the victim has also
not been examined in this case, though a compromise petition has
been filed earlier and is on record. In this case, none of the
examined witnesses has supported the case of the prosecution.
There is no evidence to link the accused person with the offence.
Hence, it is held that the prosecution has not been able to establish
the guilt of the accused under the section the charged and he is
liable to be acquitted.
ORDER
12. In view of the discussion made above I find and hold that the
accused is not guilty and he is acquitted in this case. As petitioner
namely Ashok Paswan is in jail he is directed to be released
immediately if not wanted in any other case."
5. There is no explanation why the prosecutrix has chosen not to
come to the witness box. Though not always necessary, any medical report
has not been brought on record and, on the top of this all, the Investigating
Officer of the case has failed to examine himself in the trial. As regards
evidence of PW4, it is well remembered that in "State of Karnataka v. P.
Ravikumar alias Ravi & Ors." (2018) 9 SCC 614, the Hon'ble Supreme
Court has held that when a witness resiles from his earlier statement his
statement recorded by the Judicial Magistrate under section 164 Cr.P.C is of
no relevance nor can it be considered substantial evidence to base conviction
solely thereupon.
6. This is a well-accepted proposition in law that the judgment of
acquittal recorded by the learned trial Court is not interfered with by the
High Court on some minor mistakes in appreciation of the evidence and,
that, the view taken by the learned trial Court must be accorded precedence.
7. In "Sambasivan v. State of Kerala" (1998) 5 SCC 412 the
Hon'ble Supreme Court has observed as under:
"7. The principles with regard to the scope of the powers of the
appellate court in an appeal against acquittal, are well settled. The
powers of the appellate court in an appeal against acquittal are no
less than in an appeal against conviction. But where on the basis of
evidence on record two views are reasonably possible the appellate
court cannot substitute its view in the place of that of the trial
court. It is only when the approach of the trial court in acquitting
an accused is found to be clearly erroneous in its consideration of
evidence on record and in deducing conclusions therefrom that the
appellate court can interfere with the order of acquittal....."
8. In the aforesaid state of affairs, we find that the trial Judge has
rightly concluded that the prosecution has failed to establish the charge
under section 376/427 of the Indian Penal Code against the respondent no.2.
9. While so, we do not find any ground to interfere in this matter
and, accordingly, Acquittal Appeal No.43 of 2022 is dismissed.
10. Let a copy of the Judgment be transmitted to the Court
concerned.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
High Court of Jharkhand, Ranchi
Dated: 18th April 2023
Sudhir/NAFR
