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Victim (X.N.P) vs The State Of Bihar on 22 February, 2024

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Patna High Court – Orders

Victim (X.N.P) vs The State Of Bihar on 22 February, 2024

Author: Sunil Dutta Mishra

Bench: Sunil Dutta Mishra

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.956 of 2023
Arising Out of PS. Case No.-4 Year-2020 Thana- KODHOBARI District- Kishanganj

Victim (X.N.P), aged about 24 years, female, D/o Haswbul Rehman, Village-
Gorumara, W.No-6, P.S.- Kodhobari, Dist- Kishanganj

… … Appellant/Informant
Versus
1. The State of Bihar
2. Nasir Alam, male, age not given Village- Gorumara, W.No-6, P.S.-
Kodhobari, Dist- Kishanganj

… … Respondents

Appearance :
For the Appellant : Mr. Mrityunjay Kumar, Advocate
For the Respondents : Mr. Satya Narayan Prasad, APP

CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER

(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

3 22-02-2024

Heard Mr. Mrityunjay Kumar, learned counsel for the

appellant/original informant and Mr. Satya Narayan Prasad,

learned A.P.P for the Respondent/State.

2. The present appeal has been filed by the

appellant/original informant under Section 372 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as “Code”)

against the judgment and order of acquittal dated 17.07.2023

passed by learned Additional Sessions Judge-1st, Kishanganj in

Sessions Trial No. 77 of 2020/CIS No. 77 of 2020 (arising out

of Kodhobari Police Station Case No. 04 of 2020) whereby, the

concerned Trial Court has acquitted the accused/private
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
2/18

respondent of the charges levelled against him for offences

punishable under Sections 376, 323, 504 506 of the Indian

Penal Code.

3. Learned counsel for the appellant/original

informant has placed on record the copy of the deposition of the

prosecution witnesses as well as the copy of the FIR. Learned

counsel referred to the same and thereafter submitted that, in the

present case, the appellant/informant, who is the victim, had

lodged the FIR under Sections 376, 323, 341, 354 504 of the

Indian Penal Code against the concerned accused including the

present private-respondent.

4. It is further submitted that after investigation, the

Investigating Officer filed the charge-sheet against all the

accused before the concerned Magistrate Court. However, as the

case was exclusively triable by the Court of Sessions, the

learned Magistrate committed the same under Section 209 of the

Code. It is further submitted that before Sessions Court, the

prosecution had examined eight witnesses and also produced

documentary evidence. Thereafter, the statement of the accused,

under Section 313 of the Code, came to be recorded. After

conclusion of the trial, the Trial Court has passed the impugned

order, whereby all accused have been acquitted.
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
3/18

4.1. At this stage, learned counsel submits that the

appellant/informant has filed the present appeal against only one

accused, namely, Nasir Alam against whom, allegation of rape is

made. It is fairly submitted that against the order of acquittal

passed against the other four accused, the appellant has not

preferred any appeal.

5. Learned counsel for the appellant would thereafter

submit that PW-5, who is the victim, aged about 25 years, has

specifically deposed against the present private-respondent and

stated before the Court, the manner in which, the occurrence

took place. It is further stated that statement of the victim under

Section 164 of the Code was also recorded by the learned

Magistrate. Thereafter, learned counsel submits that the medical

evidence also supports the case of the victim despite which the

Trial Court has passed the impugned order of acquittal in favour

of the private-respondent. Learned counsel, therefore, urged that

the impugned order be quashed and set aside.

6. Learned counsel for the appellant has placed

reliance upon the decision rendered by the Hon’ble Supreme

Court in the case of Anurag Soni vs. State of Chhattisgarh

reported in (2019) 13 SCC 1. Learned counsel has more

particularly placed reliance upon paragraphs 13 to 15.
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
4/18

7. On the other hand, learned APP for the Respondent-

State has also referred to the deposition of the prosecution

witnesses including the deposition given by the Doctor, PW-8.

Learned APP thereafter referred to the reasoning recorded by the

Trial Court and thereafter contended that the Trial court has not

committed any error while passing the impugned order and,

therefore, this Court may not entertain the present appeal.

However, learned APP has also submitted that looking to the

facts and circumstances of the present case, this Court may pass

appropriate order. At this stage, it is also submitted that till

today, the State has not preferred any acquittal appeal against

the order passed by the Trial Court.

8. We have considered the submissions canvassed by

the learned counsels appearing for the parties and also perused

the material placed on record including the deposition of

prosecution witnesses. From the record, it would emerge that the

victim, who is the major girl, submitted written application in

which, it has been alleged that about 6 months prior to the

lodging of the FIR, the accused Nasir Alam, who was cousin

brother of the informant, came to her house and taking

advantage of her loneliness, raped her against her will.

Thereafter, it has been also alleged that the accused promised to
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
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marry to the informant, therefore, she did not inform about the

incident to anyone. Thereafter, accused again entered into sexual

intercourse with the informant on the promise of marriage but in

the meantime, about 15 days prior to lodging of the FIR, quarrel

took place between the father of the informant and the father of

the accused with regard to the ownership of bamboo as a result

of which the accused denied to marry the informant.

9. It further transpires from the record that except the

victim, nobody has seen the alleged incident. It is true that on

the basis of the deposition given by the victim only, conviction

can be recorded without corroboration. However, it is well

settled that the sole testimony of the informant must be of

sterling quality and she must be trustworthy. The “sterling

witness” has been dealt with and considered by the Hon’ble

Supreme Court in the case of Rai Sandeep vs. State (NCT of

Delhi) reported in (2012) 8 SCC 21. The Hon’ble Supreme

Court has observed in para 22 as under:

“22. In our considered opinion, the “sterling
witness” should be of a very high quality
and calibre whose version should, therefore,
be unassailable. The court considering the
version of such witness should be in a
position to accept it for its face value without
any hesitation. To test the quality of such a
witness, the status of the witness would be
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
6/18

immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right
from the starting point till the end, namely, at
the time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in the
version of such a witness. The witness should
be in a position to withstand the cross-
examination of any length and howsoever
strenuous it may be and under no
circumstance should give room for any doubt
as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have co-relation
with each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there
should not be any missing link in the chain
of circumstances to hold the accused guilty
of the offence alleged against him. Only if
the version of such a witness qualifies the
above test as well as all other such similar
tests to be applied, can it be held that such a
witness can be called as a “sterling witness”

whose version can be accepted by the court
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
7/18

without any corroboration and based on
which the guilty can be punished. To be more
precise, the version of the said witness on the
core spectrum of the crime should remain
intact while all other attendant materials,
namely, oral, documentary and material
objects should match the said version in
material particulars in order to enable the
court trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged.”

10. In the case of Krishan Kumar Malik vs. State of

Haryana reported in (2011) 7 SCC 130, the Hon’ble Supreme

Court has considered the aspect of “sterling witness”.

11. Keeping in view the aforesaid decisions, if the

deposition given by PW-5, victim, is examined, it is revealed

that for the alleged occurrence of rape, she had given the written

application after the period of six months. It is further revealed

that as per the case of the victim, the occurrence took place

somewhere in April, 2020. However, as per the FIR, which was

recorded on 29.02.2020, the occurrence had taken place six

months prior to the lodging of the FIR that means somewhere in

August, 2019. It would further reveal from the deposition of the

victim that the victim has not specifically given the date and

time of the occurrence. She has also referred to her statement,

which was recorded under Section 164 of the Code, in which
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
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she has admitted to have voluntarily eloped with accused Nasir

Alam (present private respondent) and remained in his house for

three days. The said aspect has also been admitted by her in

paragraph 14 of her cross-examination. Further, in para 16 of

her statement, she stated that she could not have filed the case if

Nasir Alam had married with her but thereafter, in paragraph 18,

she further states that now, she does not want to marry Nasir

Alam. Thus, from the deposition of the said witness, who is the

victim, it is revealed that there are major contradictions in the

story put forward by the said witness. It is required to be noted

at this stage that, the FIR came to be filed when the

respondent/accused refused to marry the victim because of the

quarrel which took place between both the families.

12. Thus, from the FIR lodged by the victim, the

deposition given by her and from statement given by the victim

under Section 164 of the Code, it can be said that initially, the

private-respondent/accused was having intention to marry the

victim. However, because of the quarrel took place between two

families, he has refused.

13. At this stage, we would like to refer to the

decision rendered by the Hon’ble Supreme Court in the case of

Dr. Dhruvaram Murlidhar Sonar vs. State of Maharastra
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
9/18

Ors. reported in (2019) 18 SCC 191. The Hon’ble Supreme

Court has observed in para 23 as under:

“23. Thus, there is a clear distinction
between rape and consensual sex. The court,
in such cases, must very carefully examine
whether the complainant had actually
wanted to marry the victim or had mala fide
motives and had made a false promise to this
effect only to satisfy his lust, as the latter
falls within the ambit of cheating or
deception. There is also a distinction
between mere breach of a promise and not
fulfilling a false promise. If the accused has
not made the promise with the sole intention
to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape.
There may be a case where the prosecutrix
agrees to have sexual intercourse on account
of her love and passion for the accused and
not solely on account of the misconception
created by accused, or where an accused, on
account of circumstances which he could not
have foreseen or which were beyond his
control, was unable to marry her despite
having every intention to do. Such cases
must be treated differently. If the
complainant had any mala fide intention and
if he had clandestine motives, it is a clear
case of rape. The acknowledged consensual
physical relationship between the parties
would not constitute an offence under
Section 376 IPC.”

14. From the aforesaid decision rendered by the
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
10/18

Hon’ble Supreme Court, it can be said that there is a clear

distinction between rape and consensual sex. The Court in such

cases must very carefully examined whether the accused had

actually wanted to marry with the victim and mala fide motives

and had made false promise to this effect only to satisfy his lust.

It is further observed that there is also a distinction between

mere breach of promise and not fulfilling a false promise. If the

accused has not made the promise with the sole intention to

seduce the prosecutrix to indulge in sexual acts, such an act

would not amount to rape.

15. In the case of Anurag Soni (Supra) upon which

the reliance is placed by the learned counsel for the appellant,

the Hon’ble Supreme Court has recorded the facts in paragraph

13 and thereafter observed in paragraphs 13, 14 15 as under:

“13. Applying the law laid down by this
Court in the aforesaid decisions, the
following facts emerging from the evidence
on record are required to be considered:

13.1. That the family of the prosecutrix and
the accused were known to each other and,
therefore, even the prosecutrix and the
accused were known to each other.
13.2. That though the accused was to marry
another girl Priyanka Soni, the accused
continued to talk of marriage with the
prosecutrix and continued to give the
promise that he will marry the prosecutrix.

Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
11/18

13.3. That on 28-4-2013 the appellant
expressed his wish telephonically to meet
with the prosecutrix and responding to that
the prosecutrix went to the place of the
accused on 29-4-2013 by train, where the
accused received her at Railway Station
Sakti and took her to his place of residence
in Malkharauda.

13.4. That during her stay at the house of the
accused from 2.00 p.m. on 29-4-2013 to 3.00
p.m. on 30-4-2013, they had physical
relation thrice.

13.5. That as per the case of the prosecutrix,
the prosecutrix initially refused to have
physical relation, but then the appellant
allured her with a promise to marry and had
physical relation with her.

13.6. That, thereafter the prosecutrix called
the accused number of times asking him
about the marriage, however, the accused
did not reply positively.

13.7. That thereafter the prosecutrix
informed about the incident to her family
members on 6-5-2013.

13.8. That the family members of the
prosecutrix negotiated with the family
members of the accused.

13.9. That on 23-5-2013, the appellant
expressed his willingness to marry the
prosecutrix and a social function was
scheduled on 30-5-2013, which did not take
place.

13.10. That, again the family members of
both the parties had talks, in which the
marriage was negotiated and a social
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
12/18

function was scheduled on 10-6-2013, which
was again not held and further, the social
event was fixed for 20-6-2013.

13.11. That on 20-6-2013, the appellant
telephonically informed the prosecutrix that
he has already married.

13.12. That, Priyanka Soni, PW 13, who is
the wife of the accused stated that one year
prior to the marriage that took place on 10-
6-2013, the negotiations were going on.
13.13. That the accused married Priyanka
Soni on 10-6-2013 in Arya Samaj, even prior
to the social function for the marriage of the
accused with the prosecutrix was scheduled
on 10-6-2013 and even thereafter the social
event was fixed for 20-6-2013.

14. Considering the aforesaid facts and
circumstances of the case and the evidence
on record, the prosecution has been
successful in proving the case that from the
very beginning the accused never intended to
marry the prosecutrix; he gave false
promises/promise to the prosecutrix to marry
her and on such false promise he had
physical relation with the prosecutrix; the
prosecutrix initially resisted, however, gave
the consent relying upon the false promise of
the accused that he will marry her and,
therefore, her consent can be said to be a
consent on misconception of fact as per
Section 90 IPC and such a consent shall not
excuse the accused from the charge of rape
and offence under
Section 375 IPC.

15. Though, in Section 313 CrPC statement,
the accused came up with a case that the
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
13/18

prosecutrix and his family members were in
knowledge that his marriage was already
fixed with Priyanka Soni, even then, the
prosecutrix and her family members
continued to pressurise the accused to marry
the prosecutrix, it is required to be noted that
first of all the same is not proved by the
accused. Even otherwise, considering the
circumstances and evidence on record,
referred to hereinabove, such a story is not
believable. The prosecutrix, in the present
case, was an educated girl studying in B.
Pharmacy. Therefore, it is not believable that
despite having knowledge that the
appellant’s marriage is fixed with another
lady Priyanka Soni, she and her family
members would continue to pressurise the
accused to marry and the prosecutrix will
give the consent for physical relation.”

16. If the facts of the present case are examined, we

are of the view that the aforesaid decision rendered by the

Hon’ble Supreme Court in the Case of Anurag Soni (Supra),

would not be applicable in the facts of the present case and,

therefore, would not render any assistance to learned counsel for

the appellant.

17. At this stage, we would also like to refer to the

deposition given by Doctor PW-8, Dr. Devendra Kumar for

examined the victim. The said doctor has stated that he was a

part of the Medical Board which examined the victim girl. He
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
14/18

has also stated that the victim was composed and well oriented

and there was no external or internal sign of violence, hymen

was found old ruptured, no stain of sign of violence, injury or

any foreign body parts were found or inner side of thigh.

Pregnancy test came negative, no spermatozoa, alive or dead

were found or vaginal swab. As per the doctor girl was aged

about 18 years and there was no evidence of recent sexual

intercourse. Thus, the medical report also did not confirm the

commission of rape even when the girl was examined on the

same day.

18. From the aforesaid deposition given by the

Doctor, we are of the view that the medical evidence does not

support the version given by the victim.

19. At this stage, we would also like to refer to the

order dated 10.01.2014 passed by this court in Criminal Appeal

(DB) No. 550 of 2023. In the said order, the Division Bench of

this Court has considered the decisions rendered by the Hon’ble

Supreme Court and thereafter observed in para 21, 22, 23 as

under:-

“21. At this stage, it is also pertinent to
note that we are dealing with the
acquittal appeal filed by the informant
against the order of acquittal rendered by
the concerned trial court. The Hon’ble
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
15/18

Supreme Court in the case of
Chandrappa and Ors. Vs. State of
Karnataka, reported in (2007) 4 SCC
415 has observed in Paragraph-42 as
under:-

“42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of
acquittal is founded.

(2) The Code of Criminal Procedure,
1973 puts no limitation, restriction or
condition on exercise of such power and
an appellate court on the evidence before
it may reach its own conclusion, both on
questions of fact and of law.

(3) Various expressions, such as,
“substantial and compelling reasons”,
“good and sufficient grounds”, “very
strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive
powers of an appellate court in an
appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise
the reluctance of an appellate court to
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
16/18

interfere with acquittal than to curtail the
power of the court to review the evidence
and to come to its own conclusion.

(4) An appellate court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour of
the accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of
law. Secondly, the accused having
secured his acquittal, the presumption of
his innocence is further reinforced,
reaffirmed and strengthened by the trial
court.

(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded
by the trial court.”

22. Recently, the Hon’ble Supreme Court
in the case of
Nikhil Chandra Mondal
Vs. State of West Bengal, reported in
(2023) 6 SCC 605 has observed in
Paragraph No. 22 as under:-

“22. Recently, a three-Judges Bench of
this Court in the case of
Rajesh Prasad v.
State of Bihar has considered various
earlier judgments on the scope of
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
17/18

interference in a case of acquittal. It held
that there is double presumption in
favour of the accused. Firstly, the
presumption of innocence that is
available to him under the fundamental
principle of criminal jurisprudence that
every person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened
by the court. It has been further held that
if two reasonable conclusions are
possible on the basis of the evidence on
record, the Appellate Court should not
disturb the finding of acquittal recorded
by the trial court.”

23. From the aforesaid decisions
rendered by the Hon’ble Supreme Court,
it can be said that there is double
presumption in favour of the accused.

When the order of acquittal has been
recorded by the Trial Court, firstly, the
presumption of innocence that is
available to him under the fundamental
principle of criminal jurisprudence is
that every person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
Patna High Court CR. APP (DB) No.956 of 2023(3) dt.22-02-2024
18/18

reinforced, reaffirmed and strengthened
by the court. Further, if two reasonable
conclusions are possible on the basis of
the evidence on record, the Appellate
Court should not disturb the finding of
acquittal recorded by the trial court.”

20. Keeping in view of the aforesaid principle laid

down by the Hon’ble Supreme Court as well as this Court, the

impugned order passed by the Trial Court is carefully examined,

we are of the view that the Trial Court has not committed any

error while passing the impugned order and the scope of

interference in the acquittal appeal is governed by the aforesaid

decisions rendered by the Supreme Court and, therefore, in the

present acquittal appeal filed by the appellant/informant, we are

not inclined to interfere with the impugned order.

21. Accordingly, the appeal stands dismissed.

(Vipul M. Pancholi, J)

(Sunil Dutta Mishra, J)

Gaurav Kumar/-

U T

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