Jharkhand High Court
Habibullah Ansari vs The State Of Jharkhand on 21 July, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 1829 of 2004
(Against the judgment of conviction dated 06.10.2004 and the order of
sentence dated 07.10.2004, passed by the learned Vth A.J.C.-cum-Spl.
Judge No.II, CBI (AHD Scam), Ranchi, in Sessions Trial Nos. 142 & 143
of 2003)
Habibullah Ansari ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Rajesh Kumar, Advocate
For the Resp.-State : Mr. Prabir Chatterjee, Spl. PP
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05/ 21.07.2023 Heard learned counsel for the parties.
2. The instant appeal is directed against the judgment of
conviction and the order of sentence dated 06.10.2004 & 07.10.2004,
respectively, passed by the learned Vth A.J.C.-cum-Spl. Judge No.II, CBI
(AHD Scam), Ranchi, in Sessions Trial Nos. 142 & 143 of 2003, whereby
the appellant was convicted and sentenced to undergo rigorous
imprisonment for 8 years and fine of Rs.10,000/- under Section 376 of the
Indian Penal Code and in default of payment of fine, further to undergo RI
for one year.
3. The prosecution case in brief is that the appellant and the
informant were engaged in tailoring business and one day on the pretext of
marriage the appellant raped the informant-Laila Khatoon. It is alleged that
the appellant regularly did intercourse with the victim and when the
informant asked for marriage, the appellant refused to marry her.
4. Learned Counsel for the appellant vehemently argued that no
offence under Section 376 of the IPC has been committed by the appellant
and as a matter of fact, by going through the FIR and/or deposition of the
victim-P.W.4, it would transpire that before the alleged offence has been
committed, the appellant and the informant were doing works
simultaneously and in fact the mother of the appellant also asked the
victim to marry with his son, as such, at best this case could have been of
cheating, inasmuch as, on the false pretext of marriage the alleged offence
has been committed.
5. Learned Spl. PP opposed the prayer of acquittal and submits
that no error has been committed by the learned trial court as no person can
get a right to commit such a heinous offence such as offence under Section
376 IPC by alluring a lady; as such the instant appeal deserves to be
dismissed.
6. Having heard learned counsel for the parties and after going
through the LCR it appears from the deposition of the victim that the
occurrence took place sometime in the year 1999, when she was working as
a Tailor in the village. Her mother was no more and the mother of accused
Habibulla asked her to work with Habibulla and she would solemnized her
marriage with accused Habibulla. The sister of accused Habibulla also
assured in this regard. The accused Habibuilla started to do the work with
her and they used to stitch "Salwar Suit". She uses to stitch and the accused
Habibulla used to ferry it. She also resided in the house of accused
Habibulla for 15 days and at that time, accused Habibulla by giving
assurance to marry her forced to enter into co-habitation with her, and when
she asked Habibulla to marry with her, he told that after marriage of his
sister he will marry with her. From their co-habitation, a son was born
whose recent age is 2½ years. She has further stated that for "NIKAH"
accused Habibulla demanded a sum of Rs.20,000/- and when she failed to
give the demanded money, he refused to marry with her. She has further
stated that later on Md. Lala Ansari and Tahira Khatoon also demanded the
money."
7. From the above facts it transpires that the appellant and the
victim were working together and the victim was doing the work of
stitching and the appellant uses to sell the same and the mother of the
appellant wanted that both should marry and due to that reason it has been
deposed by the victim herself that the appellant by giving assurance to
marry her, forced her to cohabit with him.
It further transpires from the deposition of the doctor that there was
any force as such an inference can be created that the incident was a
consensual incident. Since the I.O. has not been examined in this case
which seriously prejudiced the case of the appellant.
8. In the case of Deepak Gulati vs. State of Haryana, reported in
(2013) 7 SCC 675 the Hon'ble Apex Court categorical differentiated
between the breach of promise and not fulfilling a false promise and further
held that an accused can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was malafide and that he had
clandestine motives.
For brevity, paragraph 21 of the aforesaid judgment is quoted
herein below:
"21. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance,
the good and evil on each side. There is a clear distinction between
rape and consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually wanted to
marry the victim, or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the latter falls
within the ambit of cheating or deception. There is a distinction
between the mere breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether there was made, at
an early stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly understanding
the nature and consequences of sexual indulgence. There may be a
case where the prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused, and not solely on
account of misrepresentation made to her by the accused, or where
an accused on account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to marry
her, despite having every intention to do so. Such cases must be
treated differently. An accused can be convicted for rape only if the
court reaches a conclusion that the intention of the accused was
mala fide, and that he had clandestine motives."
9. By going through the aforesaid judgment and looking to the
overall facts and circumstances of this case and in the absence of the
examination of the I.O. and the deposition of the Doctor, it is very difficult
to arrive at a conclusion, as to whether the promise which was made for
marriage was false from the very initiation or the said promise was not
complied thereafter; as such the appellant deserves benefit of doubt.
10. Consequently, the instant appeal stands allowed and disposed
of. The judgment of conviction dated 06.10.2004 and the order of sentence
dated 07.10.2004, passed by the learned Vth A.J.C.-cum-Spl. Judge No.II,
CBI (AHD Scam), Ranchi, in Sessions Trial Nos. 142 & 143 of 2003, is
hereby, quashed and set aside.
11. The appellant shall be discharged from the liability of his bail
bond, subject to fulfillment of aforesaid condition.
12. Let a copy of this order and the lower court record be sent to
the court concerned forthwith.
(Deepak Roshan, J.)
Pramanik/
