"X" (Name Masked By This Court) vs The State Of Jharkhand
2023 Latest Caselaw 1824 Jhar

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

                    Criminal Appeal (V) No.9 of 2022
"X" (name masked by this Court), w/o late Jay Kumar Singh, r/o House
No.6779, Bhojpur Colony, Chas, PO & PS-Chas, District-Bokaro
                                                                  ...... Appellant
                                  Versus
1. The State of Jharkhand
2. Avinash Kumar, s/o Krishna Poddar, r/o Sector 9/D, A-Road, Shivshakti
Colony, PO & PS-Harla, District-Bokaro
3. Shantanu Kumar Sharma, s/o Satyadeo Sharma, r/o Sector 9/D, A-Road,
Shivshakti Colony, PO & PS-Harla, District-Bokaro
                                                       ...... Respondents


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

For the Appellant          : Mr. Aman Kumar, Advocate
                              Mr. Gautam Kumar, Advocate
For the State of Jharkhand : Mr. Bhola Nath Ojha, APP
                           --------------
                                                             ORDER

1st May 2023 Per, Shree Chandrashekhar, J.

The informant has challenged the judgment of acquittal dated 29th June 2022 passed in Sessions Trial Case No.292 of 2019 in favour of Avinash Kumar and Shantanu Kumar Sharma.

2. Chas PS Case No.113 of 2019 was lodged on 9 th June 2019 on the basis of written report of "X" given to the Officer-in-Charge of Chas PS on 8th June 2019.

3. After the investigation a charge-sheet was laid against both the accused persons for committing the offence under sections 376, 354-D, 323 and 506 of the Indian Penal Code.

4. During the trial to support the aforesaid charges the prosecution has examined 6 witnesses out of whom the daughter of prosecutrix is PW1.

5. The learned trial Judge has discussed the evidence of the doctor who is PW3 and the prosecutrix who is PW4, in the following manners:

10. Heard the both sides and perused the record, evidences and material on record and from perusal, it appears that in this case, the above six P.W's have been examined, including the prosecutrix, her daughter, the Doctor and the I.O., but, none of them have fully supported the case of prosecution, as alleged and charged rather

given contradictory evidences, on several points.

On careful perusal of testimony of P.W.4, who is the informant/ prosecutrix, herself stated in para-2 of her cross that the house in which she lived in the name of her grand father-in-law and she is living in that house with her family members from year, 2012. Her father-in-law lived at Marafari with families and there are 20-22 members in her family.

In para-3, she stated that she has not made a witness to any member of her family. In para-4, she stated that she has no dispute with her father- in-law regarding residing at her that home. In para-5, she stated that on 07.11.2017, she had joined as agent in Sahara India and her agent Code No. is 131520982 and she is agent of Jodhadih Branch.

In para-13, she stated that regarding that occurrence, she had not stated to any female of the locality. In para-19, she deposed that on 19.11.2018, she had filed a complain case vide C.P. Case No. 1249/2018 in which Shantanu Sharma was made witness and he has adduced in her favour.

In para-30, she stated that when Shantanu was going after the occurrence, then she not raise any alarm.

In para-39, she stated that she had not complained against Avinash to any officer regarding commission of molest by him. In para-40, she stated that C.P. Case No. 1249/2018 was filed against Amit Kumar and Mahila Officer-in-Charge Sangeeta. P.W.6, in his cross, para-12, stated that he has not taken the statement of the people of the locality of the place of occurrence. In para-14, he deposed that he not taken statement of any family members and relative of the informant. In para-15, stated that the informant and his daughter Khusi Kumari has not stated the time of the occurrence during their statement. para-20, he stated that the victim had not produced any paper regarding her treatment. In para-22, he stated that no any descriptions was given to him by the victim regarding showing her obscene post by the accused. In para-31, he stated that he has not taken the defence statement of accused Avinash Kumar.

It appears that that the Doctor concerned i.e. P.W. 3 also not found any sign of the recent sexual intercourse and there were no sign of injuries in & around the perineum, which also falsify the allegation of the informant and the above version of the above main witnesses, clearly create doubt regarding the above allegation and charges against the above accused persons.

It appears that she neither raise any objection and shouted at the place of occurrence or the nearby, so that, the accused may be caught and about the incident, she also not stated or informed to her family members and the members of her maikey side and nor they were made witness and nor she produce them in the Court, in her support, which clearly shows her doubtful conduct because any such type of information, if any, such type of occurrence occurred, be informed to her parents and close relatives but, the informant did not do so in this case, which creates doubts regarding her allegation and case and the doubt always goes in favour of the accused persons.

It appears that the examined witnesses including the informant/victim and I.O. of the case also has given contradictory evidence on several points, as discussed above, which also creates doubts regarding the above allegation against the accused persons. It also appears that that none of the examined witnesses have fully supported the case of prosecution, as alleged, rather given contradictory evidences on several points, which creates doubt and their testimony is neither credible nor trustworthy, so, prosecution could not prove and establish the above charges against the above

accused persons, beyond all reasonable doubts. It has also been observed by the Hon'ble Courts in several cases that to convict the persons concerned, the testimonies of credible and trustworthy witnesses must be available on record and there must not be any doubt regarding commission of the concern offence by him/them.

But, in this very case, there is lack of testimonies of credible and trustworthy witnesses and there are contradictions in their testimonies, as discussed above."

6. This is the case of the prosecution that after the death of the husband of the prosecutrix in an accident the accused persons on assurance to help her developed intimacy with her. The further case of the prosecution is that Shantanu Kumar Sharma who is a married man gave false assurances to the prosecutrix and established physical relationship with her. According to the prosecutrix, on 21st April 2019 Shantanu Kumar Sharma forced enter her house and tried to establish physical relationship with her but somehow she could escape and in the process her left finger was fractured.

7. As PW3, Dr. Nirose Jojo has tendered evidence in the Court that she did not find any external injury over the body of the prosecutrix. On external examination of the prosecutrix, the doctor has observed that there was no injury, no foreign body, no blood clots or seminal stain in and around her perineum. The vaginal swab was taken and sent for lab examination but the presence of spermatozoa was not detected.

8. The following observations are made by PW3:

(i) Vaginal swab examination - sperms not seen,

(ii) X-ray done at Sadar Hospital plate no.7415 dated 14.06.2019 x-ray of left wrist, left elbow and pelvis A.P. view. Advised Opinion:

(i) There is no sign of recent and forceful sexual intercourse,

(ii) There were no sign of injuries in and around the perineum.

9. The doctor has deposed in the Court that the prosecutrix told her that she got injured about one month before but she was not medically examined at that time.

10. No doubt in a prosecution for sexual assault as defined under section 375 of the Indian Penal Code the evidence of the victim stand alone is sufficient to record conviction of the accused. A victim of sexual offence who would be an injured witness when comes to the Court and makes a statement against the accused, the Court finds assurance in her evidence inasmuch as being victim of the crime the witness is an eyewitness. However, there is no law of universal application that the evidence of the

victim of sexual offence must be treated as gospel truth and no matter howsoever discrepant her statement is a finding of guilt must be recorded. Equally true, this is a kind of established law adopted in the Courts that testimony of a victim of sexual offence is scrutinized with the same yardstick as that of any other witness. Therefore, to record conviction on the basis of the statement of a victim of sexual offence the Court is required to record a finding that the witness has tendered evidence of such sterling quality which admits no doubt about complicity of the accused in the crime, the evidence of the victim does not suffer from any inherent improbability and inspires confidence of the Court.

11. In "State (NCT of Delhi) v. Pankaj Chaudhary" (2019) 11 SCC 575 the Hon'ble Supreme Court has observed as under:

"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K.]"

12. PW1 who is the minor daughter of the prosecutrix has stated in the Court that she used to call Shantanu Kumar Sharma her father. She has narrated an entirely altogether different story in the Court. According to PW1, her mother had asked her to go to the roof to start the water pump and after about 20 minutes when she came down she found that her mother was closed in the room with the accused. She has further stated that Shantanu Kumar Sharma came out from the room of her mother and she found her mother weeping. PW2 Ravikant Tiwari who is a neighbour has deposed in the Court that while he was going to fetch medicine on 21st April 2019 the prosecutrix narrated him the whole story. The prosecutrix is a grown up mature woman with a daughter. She must have decided to enter into a voluntary sexual relationship with the accused. The statement of PW1 who has said that she used to call Shantanu Kumar Sharma her father leaves no doubt that the prosecution story contains more chaff than grain.

13. 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."

14. In our opinion, the learned trial Judge has rightly refused to accept the testimony of the prosecution and there is no compelling reason to interfere with the judgment of acquittal.

15. In "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 the Hon'ble Supreme Court has held as under:

"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference(see hivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to arrive at its own conclusions."

(See also George v. State of Kerala)."

16. Having examined the materials on record, we do not find any ground to interfere with the judgment of acquittal dated 29 th June 2022 passed in Sessions Trial Case No.292 of 2019 and, accordingly, Criminal

Appeal (V) No.9 of 2022 is dismissed.

17. Let a copy of the order be transmitted to the Court concerned.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 1st May 2023 Sudhir/NAFR