"X" (Name Masked By This Court) vs The State Of Jharkhand
2023 Latest Caselaw 1940 Jhar

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

                    Acquittal Appeal No. 27 of 2020

"X" (name masked by this Court), d/o Sita Nath Mahto, r/o Hospital Toli,
Bundu, PS-Bundu, District-Ranchi, Jharkhand at present r/o Dangratoli, PO
& PS-Lalpur, District-Ranchi, Jharkhand                   ...... Appellant
                                 Versus
1. The State of Jharkhand
2. Niraj Kumar @ Neeraj Kumar, s/o Shri Pashupati Koiry, r/o village- &
PO-Barendra, PS-Sonahatu, District-Ranchi, Jharkhand....
                                                     ...... Respondents

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

For the Appellant         :   Mr. Jai Shankar Tripathi, Advocate
For the State             :   Mr. Azeemuddin, APP

                                --------------
                                                             ORDER

05th May 2023

Per, Shree Chandrashekhar, J.

The prosecutrix has challenged the judgment of acquittal passed in Sessions Trial No.206 of 2018 by which Neeraj Kumar has been acquitted of the charge under section 376(2)(n) of the Indian Penal Code.

2. On the basis of a written report given by the prosecutrix to the Officer-in-Charge of Bariatu PS, a First Information Report vide Bariatu PS Case No.155 of 2017 was lodged against the respondent no.2 on 27th May 2017 for committing the offence under sections 376, 420, 417 and 506 of the Indian Penal Code. After the investigation, a charge- sheet was laid against the respondent no.2 on 30 th August 2017 and the aforesaid charge was framed against him vide order dated 28th September 2018 to which he pleaded not guilty and claimed to be tried.

3. In course of the trial, the prosecution has examined 9 witnesses out of whom PW5 is the prosecutrix. Girija Shankar Mahto who is the brother and Sita Nath Mahto who is the father of the prosecutrix came to the witness box to support her on the charge against the respondent no.2.

4. The defence set-up by the respondent no.2 was that the prosecutrix was a consensual partner to the sexual relationship with him and to corroborate his stand the respondent no.2 has laid in evidence 7 handwritten pages of the diary of the prosecutrix vide Exhibit-A.

5. The trial Judge has found that the circumstances, such as, non-disclosure by the prosecutrix about sexual assault upon her, the prosecutrix refusing to undergo medical test and the diary notings of the prosecutrix which reflects her one-sided love for the respondent no.2, create serious doubt on the veracity of the prosecution story.

6. The learned trial Judge has appreciated the evidence laid before him in the following manners:

"21. After scanning of the entire evidence on the record, I find that though the victim (PW-5) has deposed that she met with the accused in the year 2012 and after the acquaintance, in the Month of August 2012 when she was residing in Dangratoli Lodge at Ranchi, the accused called her at his rented room and forcibly committed rape on her against her will and continued to establish physical relation for five years on assurance of marriage and ultimately refused to marry and PW-1 Santosh Kumar (maternal uncle of the victim), PW-3 Ganpati Prasad (maternal uncle of the victim), PW-2 Girija Shankar Mahto (brother of the victim) though all hearsay witnesses have also corroborated the same but at the same time on perusal of Ext. A which is a letter containing 7 pages in the own handwriting of the victim shows that the victim was in one sided love with the accused and therefore the case of the accused that the victim was pressurizing for marriage to the accused because of the one sided love and when he refused, this false case was registered, gain force and the story of the prosecution gets doubtful.

22. Not only this, on perusal of paragraph 7 of the deposition of PW-1, Paragraph 2 & 14 of PW-4, paragraph- 15 of PW-3, paragraph 2 of PW-4, paragraph 36 of PW-6, the victim herself goes to prove that the victim had never informed nor complained to anyone regarding her relation/occurrence with the accused nor even to her family members and she gave information regarding the same five years later in the year 2017 which further makes the prosecution story unbelievable.

23. At the same time, refusal of the victim to undergo medical check up as per the evidence of the 1.O. (PW-9) vide paragraph 7 and 20 further creates doubt in the trustworthyness of the case of the prosecution.

24. It further transpires that the victim is 30 years old and she is major and competent to think regarding her well being and under such circumstance entering into such relationship and continuing the same for 5 years secretly without discloser to any one, can not be under any misconception of fact and so no ingredient of the offence of rape defined u/s 375 IPC is fulfilled.

25. Thus on the basis of the above appreciation of the prosecution as well as defence evidence available on the case record, I find and hold that the prosecution has failed to prove his case against the accused beyond all reasonable doubt and therefore the accused namely Neeraj Kumar is hereby acquitted of the charge u/s 376 (2)

(n) of the IPC. He is already on bail. He and his bailors are discharged from the liabilities of his bail bonds and O/c to deposit the case record to the Record Room."

7. 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.

8. The case of the prosecutrix is that she first met the respondent no.2 in the year 2012 - he is a distant relative. They exchanged their cell phone numbers and started interacted with each other. But in August, 2012, the respondent no.2 forced himself on her and sexually ravished her against her will. According to the prosecutrix, the respondent no.2 promised to marry her and continued physical relationship with her on a false assurance that after getting a job he would marry her. PW1 is the maternal uncle of the prosecutrix who has deposed in the Court that she was staying in a lodge near Dangratoli, Ranchi and, that, she became acquainted with the respondent no.2. PW3 is the brother of the prosecutrix who has stated that his sister was preparing for M.Com. while staying at Dangratoli lodge and after 5 years she revealed to him that the respondent no.2 had forcibly established physical relationship with her. These witnesses are hearsay witness who came to know about the alleged incident of 2012 after about 4-5 years when the prosecutrix made

disclosure before them. In his cross-examination, PW2 has admitted that his sister never made any complaint against the respondent no.2 in the last 5 years and she is aged about 30 years. PW3 who is the maternal uncle of the prosecutrix has admitted in the cross-examination that he never visited the lodge at Dangratoli and he came to know about the alleged occurrence after about 5-6 years. Similarily, the father of the prosecutrix who has been examined as PW4 has admitted that after about 4-5 years his daughter disclosed to him about the respondent no.2 forcibly establishing physical relationship on assurance of marriage. In the cross- examination, PW4 has admitted that he came to know about the incident after the case was lodged. PW6 who is the landlord and PW7 who is the wife of PW6 have stated in the Court that the respondent no.2 was their tenant in the year 2009 and, that, they never saw the prosecutrix visiting the room of the respondent no.2. PW8 who is another tenant under PW6 has denied knowledge about the incident and has admitted that he has never seen the prosecutrix.

9. From the materials on record, we gather that the prosecutrix was of the mature age of 30 years. She was staying at a lodge while preparing for M.Com. and continued physical relationship with the respondent no.2 for about 5 years. This is the evidence coming through the prosecution witnesses that for long 5 years the prosecutrix did not inform her family members or lodge a complaint with the police regarding the incident of August, 2012 when the respondent no.2 had sexually assaulted her. This has also come on record that when the respondent no.2 refused to marry her, she gave a written complaint to the Officer-in-Charge of Bariatu PS.

10. 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.""

11. In our opinion, the trial Judge has rightly refused to accept the prosecution story and acquitted the respondent no.2 for the charge under section 376 (2)(n) of the Indian Penal Code.

12. "Sheo Swarup v King Emperor" AIR 1934 PC 227(2) is the leading judgment wherein it has been held that the High Court shall always give proper weightage and consideration in the matters of acquittal as to (i) views of the trial Judge regarding the credibility of the witnesses (ii) presumption of innocence in favour of the accused (iii) right of the accused to the benefit of any doubt and (iv) slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

13. Though the Code of Criminal Procedure does not provide any limitation on the powers of the High Court acting as an appellate Court to interfere with the judgment of acquittal, there are well-settled circumstances only under which the appellate Court should interfere with the judgment of acquittal.

14. In "Mrinal Das v. State of Tripura" (2011) 9 SCC 479 the Hon'ble Supreme Court has held as under:

"13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, it being the final court of fact, is fully competent to reappreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty

by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."

15. Having regard to the fact that there is no error committed by the trial Judge which has resulted in miscarriage of justice, Acquittal Appeal No.27 of 2020 is dismissed.

16. Let a copy of the Judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 05th May 2023 sudhir/NAFR