The High Court · 2017
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Acquittal Appeal (DB) No. 64 of 2020 (Against the judgment of acquittal dated 26th July 2017, passed by the learned Additional Sessions Judge-XVIII, FTC, Dhanbad in Sessions Trial Case No. 377 of 2013) ----- 'X' (name has been masked by the Court), daughter of Dipak Chauhan, resident of Kankanee Hanuman Bazar, PO: Bansjora Baghmara, PS: Loyabad, Dist.: Dhanbad, Jharkhand. ... Appellant Versus … Respondent The State of Jharkhand ------ CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ----- : Mr. Md. Kaisar Alam, Advocate; For the Appellant Mr. Rameez Alam, Advocate; Mr. Shabbir Ahmed, Advocate For the State : Mr. B.N. Ojha, APP ----- O R D E R 10th May 2023 Per, Shree Chandrashekhar, J. IA No.5976 of 2020 IA No.5976 of 2020 has been filed for leave to appeal. 2. In view of the proviso to section 372 of the Code of Criminal Procedure, IA No.5976 of 2020 is allowed. Acquittal Appeal (DB) No. 64 of 2020 3. The registry has reported that there is delay of 873 days in filing the present acquittal appeal. However, an application under section 5 of the Limitation Act has not been filed by the appellant. Therefore, we observe that the present Acquittal Appeal has been casually preferred by the appellant. However, having seen the matter on merits we are not inclined to adjourn hearing of this Acquittal Appeal. 4.
Legal Reasoning
The prosecutrix has challenged the judgment of acquittal of Munna Kumar Verma in Sessions Trial Case No. 377 of 2013. 5. In Sessions Trial Case No. 377 of 2013, Munna Kumar Verma who was charged under sections 376, 343, 363 and 366-A of the Indian Penal Code has been acquitted. 6. Jogta (Loyabad) PS Case No. 66 of 2013 was lodged on the basis of written report of father of the prosecutrix Dipak Chauhan. The case 2 Acquittal Appeal (DB) No. 64 of 2020 of the prosecution is that the accused was in contact with the prosecutrix and used to chat with her on her cellphone No.8271014030. In the process, the accused induced the prosecutrix and enticed her away on a promise of marriage. On the basis of the written report dated 5th May 2013 submitted by the informant to the officer-in-charge of Loyabad police station a First Information Report was lodged under section 366-A of the Indian Penal Code against Munna Kumar Verma, and after the investigation a charge- sheet was laid against him for committing the offence under section 366-A of the Indian Penal Code. 7. As noticed above, the accused has faced the trial on the charge under sections 343, 363 and 366-A of the Indian Penal Code which were framed against him on 12th August 2013 and also under section 376 of the Indian Penal Code which was framed vide order dated 17th February 2017. 8. During the trial, prosecution has examined six witnesses out of whom PW5 is the prosecutrix. PW1 Geeta Devi who is the mother and PW2 Deepak Kumar Chauhan who is the father of the prosecutrix came to the Court to support their daughter. 9. The trial Judge has held that the prosecution was unable to establish that the prosecutrix was of the age of sixteen years. The discussion on this issue has been made by the learned trial Judge in the following manner: “24. Now, I would like to take up the issue of age of the victim girl. In the written report as also in the testimony of PWs-1 & 2 who are parents of victim, the age of the victim has been mentioned as 13 years. It has been stated that she was a school going girl and was a student of class-VIII or IX on the day of occurrence. But no document of age has been given to the I.O. (PW-6) nor has he bothered to collect any document to this effect from the school of the victim. The I.O. has clearly deposed to this effect in para-21 of his evidence. Thus, no document of age has been brought either during investigation of the case or even during the entire trial of the case. Thus, the age of the victim that she was a minor or about 13 years of age, has not been proved by the prosecution. The I.O. has even not taken pain to get a Medical Board constituted to assess the age of the victim. However, on the last day of hearing i.e. on 22.7.2017, photocopy of some documents i.e. the School Leaving Certificate issued on 8.6.2016 by BGS High School Loyabad and one issued by National Public School, Kankani ( Dhanbad) dated 2.5.2014 and that of Aadhaar Card No. 390049376384 of the victim have been filed, which have been marked 'X' to 'X/2' for identification. But these documents have not been duly marked as exhibit and hence, the same can not be looked into in evidence. 25. On the other hand, the age of the victim has been assessed as 17 years according to Radiological Report in the Medical 3 Acquittal Appeal (DB) No. 64 of 2020 Examination Report (Ext.3).Thus, for want of any convincing evidence in support of the age of the victim as 13 years or so, the age assessed in the Medical Examination Report, (Ext-3) has to be relied upon. In view of the foregoing discussion, I find and hold that the age of the victim was around 17 years and not 13 years as claimed by the prosecution.” 10. Finally, after referring to the judgments in “Jaya Mala v. The Home Secretary, Government of Jammu & Kashmir” 1982 Supreme Court 1293; “Jagarnath Mahato v. State of Bihar” 2012(1) East Cr. C. 194 ( Pat); “Sat Prakash v. State of Haryana & Another” 2016 (1) East Cr. C. 144 (SC) and in “Raju Topo v. State of Jharkhand” 2013 (2) East Cr. C. 327 ( Jhr) the trial Judge has held that the charge under sections 376, 343, 363 and 366-A of the Indian Penal Code has not been proved against the accused. 11. 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 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. 12. As PW3, Dr. Urmila Singh has stated that in the Court that on 6th May 2013 she clinically examined the prosecutrix at PMCH, Dhanbad but did not find any injury on any part of her body or around her private parts. 13. PW1 claims that she gave a Sanha information to the police on 29th April 2013 but no case was lodged by the police. The informant has claimed that when he came back home he gave a written report on 5 th May 4 Acquittal Appeal (DB) No. 64 of 2020 2013 to the police. PW1 who is the mother and PW2 who is the father have stated in the Court that their daughter was recovered from the house of Munna Kumar Verma. PW1 has admitted in her cross-examination that she had never seen the accused at her home. PW2 has also stated that he had never seen the accused prior to the occurrence. He has further stated that the house of the accused is at a distance of about 16-17 Kilometers from his house. As PW5, the prosecutrix has deposed in the Court that on 29th April 2013 at about 3:00 PM while going to take tuition at Loyabad when she reached near Konark Hotel the accused approached her and offered to drop her at the tuition place. However, when she declined the offer the accused took her on his motorcycle and confined her in a room for a week and committed rape upon her. She has stated in her cross-examination that the accused never contacted her over mobile phone and she does not know the mobile phone number of the accused. She has further stated that she does not use a mobile phone and does not know to whom mobile number 8271014030 belongs to. She has further admitted that she has appeared in the matriculation examination in the year 2016. 14. As is apparent from the evidence of the prosecutrix, after her initial reluctance she went with the accused without any protest and she did not raise any alarm. The evidence of the prosecutrix is full of contradictions inasmuch as she has claimed that she did not meet the accused after the marriage of her sister. But the CDRs of the mobile phones belonging to her and the accused establish that both were in constant touch. If the statement of the prosecutrix is accepted that before the occurrence she had not met the accused, it is creating doubt on her version of the occurrence if she went with the accused without raising any hulla. 15. While dealing with a challenge to the judgment of acquittal, the High Court is required to keep in mind that unless it is shown that there are compelling circumstances acting as an Appellate Court the High Court shall not interfere with the judgment of acquittal. 16. “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 such matters as to (i) the views of the trial Judge as to the credibility of the witnesses (ii) presumption of innocence in favour of the accused (iii) right of the accused to the benefit of 5 Acquittal Appeal (DB) No. 64 of 2020 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. 17. Having regard to the aforesaid facts and circumstances in the case, we find no error in the judgment of acquittal dated 26th July 2017, passed by the learned Additional Sessions Judge-XVIII, FTC, Dhanbad in Sessions Trial Case No. 377 of 2013, and, accordingly, Acquittal Appeal (DB) No. 64 of 2020 is dismissed. 18. Let a copy of this order be communicated through FAX to the learned Court below. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-10th May 2023 Sharda/S.B.-NAFR