Mala Kujur, aged about 26 years, d/o Gandru Kujur, r/o village-Korambi, Jhingri, PO & v. 1. The State of Jharkhand 2. Ashish Koiri, s/o Gurupado Koiri, r/o Dugdha
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal (S.J) No. 17 of 2021 --------------- Mala Kujur, aged about 26 years, d/o Gandru Kujur, r/o village-Korambi, Jhingri, PO & PS-Mandar, District-Ranchi, presently residing at Adarsh Nagar, Kokar Chowk, PO & PS-Sadar, District-Ranchi ......Appellant Versus 1. The State of Jharkhand 2. Ashish Koiri, s/o Gurupado Koiri, r/o Dugdha (Suisa), PO & PS- Bandhmundi, District-Purulia, West Bengal .... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
For the Appellant For the Respondent No.2 : Mr. Rishu Ranjan, Advocate : Mr. Samir Kumar Lall, Advocate --------------- Order No.6/Dated:12th March 2024 This Acquittal Appeal is directed against the judgment of acquittal in Sessions Case No.136 of 2018. 2. The main ground urged on behalf of the appellant is that the finding by the trial Judge that the witnesses tendered cogent and convincing evidence during the trial cannot be interfered by the appellate Court without giving compelling reasons. 3. In the trial, the prosecution examined five witnesses out of whom PW2 was the victim-complainant. The other witnesses examined by the prosecution are not the eyewitnesses. In support of the allegation that the respondent No.2 committed the offence under sections 376(2)(n) and 377 of the Indian Penal Code the victim-complainant tendered evidence that the respondent No.2 on an assurance of marriage established physical relationship with her. However, as PW2 the complainant in her cross- examination admitted that she made a statement before the police that she was living with the respondent No.2 as his wife. She further admitted that this fact was known to her family that she was living with the respondent No.2 between 2011 till 2015 and her family members never raised any objection. Now the statement of PW2 that in October 2011 the respondent No.2 forcibly established physical relationship with her cannot be made foundation for convicting the respondent No.2 and, that too, when she 2 Acquittal Appeal (S.J) No.17 of 2021 admitted in her cross-examination that she did not inform her family about the occurrence. 4. Having regard to the admissions of PW2 in her cross- examination, there can be no doubt that her consent for sexual intercourse as envisaged under Explanation 2 to section 375 of the Indian Penal Code was unequivocal and voluntary. Explanation 2 to Section 375 of the Indian Penal Code provides that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act. The conduct of PW2 in living together with the respondent No.2 in his house for years together with intimate physical relationship with him must be construed as if she had the same purpose and intention as the respondent No.2 had in his mind for continuing with sexual relationship. Having regard to the sexual relationship of PW2 over a period between 2011 till 2015, this can be safely inferred that there was no doubt in her mind when she decided to permit the respondent No.2 to have sexual intercourse with her; may be marriage with the respondent No.2 was one of the considerations. 5. In “Uday v. State of Karnataka” (2003) 4 SCC 46 the Hon’ble Supreme Court has observed as under: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 6. In “Maheshwar Tigga v. State of Jharkhand” (2020) 10 SCC 108 the Hon’ble Supreme Court has observed as under: 3 Acquittal Appeal (S.J) No.17 of 2021 “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.” 7. The High Court in dealing with an appeal against acquittal exercises the similar powers as are exercised while dealing with an appeal against conviction, can re-appreciate the evidence and come to a different conclusion. But the High Court must keep in mind that there are judicially evolve norms and guidelines when interference with a judgment of acquittal is permissible. In the first place, the acquittal of the accused by the trial Court raises a double presumption of innocence in favor of the accused and, secondly, wherever two views are possible the High Court shall be denuded of its powers to interfere with the judgment of acquittal. 8. In “Tota Singh v. State of Punjab” (1987) 2 SCC 529 the Hon’ble Supreme Court has observed as under: “6. ...... This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, 4 Acquittal Appeal (S.J) No.17 of 2021 the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.” In view of the aforesaid facts and circumstances of the case, 9. this Acquittal Appeal is dismissed. Sudhir/ (Shree Chandrashekhar, A.C.J.)