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Jharkhand High Court · body

2019 DIGILAW 1218 (JHR)

Md. Anwar Mian v. State of Jharkhand

2019-06-28

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present appeal has been preferred against the judgment of conviction and the order of sentence dated 30.08.2005 and 31.08.2005 respectively passed by the learned Sessions Judge, Hazaribagh in Sessions Trial No. 125 of 1998 whereby the appellant has been convicted for the offence under Section 376 of IPC and sentenced to undergo R.I for five years. 2. The prosecution case in brief, as stated in the complaint filed by the prosecutrix (Jubeda Khatoon) is that on 10.06.1995 at about 2.00 PM when she was alone in her house, the appellant came there and started making amorous advances. When she objected to the same, the appellant threatened her and forcibly committed rape upon her. The prosecutrix wanted to disclose the said occurrence to her family members, but the appellant assured to marry her soon. Out of shame and on the said assurance of the appellant, the victim did not disclose the said incident to her family members. Thereafter, whenever the appellant got an opportunity, he committed rape on her as a result of which she became pregnant. Whenever the victim used to pressurize the appellant to marry her, he used to defer it on one pretext or the other. Thereafter, the victim disclosed the matter to her family members, who contacted the family members of the appellant for his marriage with the victim, but they refused to solemnize the marriage, unless a sum of Rs.25,000/- would be paid to them. A Panchayat meeting was also held between the parties in which though the appellant initially agreed for marriage, but subsequently he refused. 3. Thereafter, the victim filed Complaint Case No. 334 of 1996 which was subsequently referred to the concerned police station for lodging of an FIR and accordingly Sadar(M) P.S. Case No. 270 of 1996 was registered on 14.08.1996 under Sections 366/376/328/120B of IPC against all the accused persons. After investigation, the police submitted the chargesheet against all the accused persons including the appellant. Thereafter, charge was framed on 04.11.2003 under Section 376 of IPC against all the appellant and under Sections 366/328 of IPC against the accused persons including the appellant. The case was committed to the Court of Session for trial. After the evidence, the statements of the accused persons were recorded under Section 313 of the Cr.P.C on 01.08.2005 in which they denied the allegations levelled against them. 4. The case was committed to the Court of Session for trial. After the evidence, the statements of the accused persons were recorded under Section 313 of the Cr.P.C on 01.08.2005 in which they denied the allegations levelled against them. 4. In order to substantiate the charge against the accused persons, the prosecution has examined altogether six witnesses. P.W.1 (Md. Ramjan) is the father of the victim. P.W.2 (Md. Ismaeel) is an independent witness. P.W.3 (Badaru Nisha) is the mother of the victim. P.W.4 (Md. Nasiruddin) has been declared hostile by the prosecution. P.W.5 (Jubeda Khatoon) is the victim. P.W.6 (Suresh Kumar) is a formal witness who has stated nothing material in support of the prosecution’s case. 5. The defence has not examined any witness so as to give any counter version of the alleged occurrence. 6. The learned Trial Court, vide judgment dated 30.08.2005, after appreciating the evidence of the prosecution witnesses and the materials available on record, acquitted all the accused persons for the offence under Sections 366/328 of IPC. However, the appellant was convicted under Section 376 of IPC and sentenced to undergo R.I. for five years. 7. Learned counsel for the appellant submits that the doctor who is said to have clinically examined the victim and the investigating officer of the case have not been examined in the trial. Moreover, no independent eye-witness has been examined in this case. At the time of the alleged occurrence, the victim was major and as such the alleged sexual relationship between the victim and the appellant cannot be termed as rape. 8. Per-contra, learned A.P.P appearing on behalf of the State submits that the victim has specifically stated before the learned Trial Court that the appellant forcibly committed rape upon her. P.W.1 has deposed that at the time of the alleged incident, the victim was aged about 15 years and as such even if the alleged sexual intercourse was established with her consent, the same would come under the definition of ‘Rape’. Mere fact of non-examination of the investigating officer is not fatal to the case of the prosecution as all the prosecution witnesses including the victim have consistently proved the factum of the alleged incident. 9. Heard learned counsel for the parties and perused the materials available on record. Mere fact of non-examination of the investigating officer is not fatal to the case of the prosecution as all the prosecution witnesses including the victim have consistently proved the factum of the alleged incident. 9. Heard learned counsel for the parties and perused the materials available on record. P.W.1 is the father of the victim who has deposed that the victim had love affair with the appellant and physical relationship got developed between them due to which she became pregnant. A Panchayat meeting was also called, but the appellant did not attend the same. He has further deposed that the age of the victim was 15 years at the time of the alleged incident. P.W.2 has deposed that there was love affair between the appellant and the victim and out of the said relationship, the victim became pregnant. One Panchayat meeting was also called wherein the said witness was also present, but the appellant did not participate. P.W.3 is the mother of the victim who has deposed that the victim had told her that the appellant had established physical relationship with her on the promise of marriage. The said witness talked to the parents of the appellant for solemnizing marriage between the appellant and the victim, but they demanded Rs.25,000/- and declined the marriage proposal. A Panchayat meeting was also held wherein the appellant did not come. P.W.5 is the victim girl who deposed that the appellant came to her house when she was alone and forcibly committed rape upon her and thereafter he frequently used to visit her house and used to establish physical relationships with her. Consequently, she became pregnant. She told her parents that the appellant, on the promise of marriage, established sexual intercourse with her. She further deposed that her parents talked to the parents of the appellant with a proposal of marriage between the victim and the appellant which was initially accepted, but subsequently refused due to non-fulfilment of demand of Rs.25,000/-. A Panchayat meeting was also convened in which the appellant did not participate and the father of the appellant demanded Rs.25,000/- for marriage when the Panchayat meeting was called second time. 10. Learned counsel for the appellant puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Sunil Vs. State of Haryana reported in (2010) 1 SCC 742 . 10. Learned counsel for the appellant puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Sunil Vs. State of Haryana reported in (2010) 1 SCC 742 . In the said case, there was love affair between the prosecutrix and the accused. The doctor, who clinically examined the prosecutrix, found that her secondary sex characters were well developed. The prosecutrix was not examined by the dental surgeon and the radiologist, despite the fact that she was referred to them by Dr. Sadhna Verma. It has thus been observed that in absence of any primary evidence, the reports of the dental surgeon and the radiologist would have helped Their Lordships in arriving at the conclusion regarding the age of the prosecutrix. The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. It has been further held as under: “26. Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 27. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunae in the prosecution version. The appellant is clearly entitled to the benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 11. In the case of State of M.P. Vs. Munna, reported in (2016) 1 SCC 696 , it has been held as under: “9. From the x-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the x-ray report is not sufficient to prove the age of the prosecutrix. Munna, reported in (2016) 1 SCC 696 , it has been held as under: “9. From the x-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the x-ray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW 5 but the prosecution failed to question the prosecutrix on her age, therefore, no fact could be gathered from her regarding the issue of age. PW 6 Malti Devi, mother of the prosecutrix, was examined where she stated the age of prosecutrix to be 13 years. However, in her cross-examination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 2-3 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 15-16 years at the time of the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the ossification test x-ray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent. 10. This Court in the case of Birad Mal Singhvi v. Anand Purohit, has held: (SCC p. 620, para 17) “17. … the entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined.” 11. Further, it was held by this Court in Sunil v. State of Haryana that: (SCC p. 750, para 26) “26. Further, it was held by this Court in Sunil v. State of Haryana that: (SCC p. 750, para 26) “26. … In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.” 12. In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.” 12. In the present case also, the prosecution witnesses consistently deposed that there was love affair between the victim and the appellant and out of the said relationship, the victim became pregnant. Though the victim deposed before the Trial Court that the appellant forcibly committed rape upon her, yet the said statement has not been corroborated even by P.Ws. 1 & 3 i.e. father and mother of the victim who deposed that the victim had told them that the appellant had developed physical relationships with her on the promise of marriage. The independent witness i.e. P.W.2 has also corroborated the factum of love affair between the appellant and the victim girl. Under the said factual context, I am of the considered view that there was love affair between the appellant and the victim out of which the physical relationship got developed and the victim became pregnant. 13. So far as the age of the victim (P.W.5) is concerned, though she has extensively deposed in the trial, yet she has not disclosed her date of birth in her entire testimony. When the Trial Court asked from the father of the victim (P.W.1) about the age of the victim, he stated that the age of the victim is 15 years. However, he did not disclose the exact date of birth of the victim. When the Trial Court asked from the father of the victim (P.W.1) about the age of the victim, he stated that the age of the victim is 15 years. However, he did not disclose the exact date of birth of the victim. Neither any primary evidence relating to the date of birth of the victim was produced before the Trial Court nor she was medically examined for determination of her age. Moreover, the age of the victim has been stated as 15-16 years in the complaint. The medical examination report of the victim, issued by the Deputy Superintendent, Sadar Hospital, Hazaribagh (Ext.2), has however disclosed the age of the victim as 18 years on 06.09.1996 and as such on the date of the alleged incident, she was above 16 years of age. Thus, there is contradictory evidence on record in relation to the age of the victim. The burden of proving the fact that at the time of the alleged incident the victim was below the age of 16 years, was upon the prosecution, but it failed to adduce sufficient evidence in support of the said fact. Under such circumstance, the appellant deserves benefit of doubt. 14. The prosecution has also failed to prove the fact that the intention of the appellant from the very beginning was fraudulent, rather it appears from the evidences of the prosecution witnesses that initially the appellant’s family members agreed for marriage, however, subsequently due to demand of Rs.25,000/- by the parents of the appellant, the marriage could not be solemnized. Thus, it is a case of breach of promise to marry and not a case of false promise to marry. 15. The facts of the case of Deelip Singh Vs. State of Bihar reported in (2005) 1 SCC 88 is almost identical to the present case as it was alleged by the victim in the said case that the accused committed rape on her on the first occasion and thereafter she developed sexual relationship with the accused on the promise of marriage. Out of the said relationship, she became pregnant and thereafter the matter came to the knowledge of the parents of the victim and they tried to get the marriage solemnized between the victim and the accused, however, their efforts failed and finally a criminal complaint case was filed. Out of the said relationship, she became pregnant and thereafter the matter came to the knowledge of the parents of the victim and they tried to get the marriage solemnized between the victim and the accused, however, their efforts failed and finally a criminal complaint case was filed. The Hon’ble Supreme Court has observed that there was clear prosecution evidence that the predominant reason which weighed with her in agreement for sexual intimacy with the accused was the hope generated in her regarding the prospect of marriage with the accused. It has further been held that consent given by a woman believing the man’s promise to marry her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. 16. In view of the discussions made herein above, the present appeal is allowed. The judgment of conviction and the order of sentence dated 30.08.2005 & 31.08.2005 respectively passed by the learned Sessions Judge, Hazaribagh in Sessions Trial No. 125 of 1998 is hereby set aside. The appellant is acquitted of the charge under Section 376 IPC. Since the appellant is on bail, he is discharged from the liability of his bail-bond furnished in this case. 17. Let the L.C.R be transmitted back to the concerned Court below. 18. Before parting with the judgment, this Court appreciates the assistance provided by Mr. Vishwanath Ray, learned amicus curiae, in disposal of the present criminal appeal. The Secretary, Jharkhand Legal Services Authority is thus directed to pay the admissible fee to Mr. Vishwanath Ray, learned amicus curiae, within six weeks from the date of receipt of a copy of the judgment.