Patna High Court
Tabassum Khatoon vs The State Of Bihar on 1 August, 2025
Author: Sudhir Singh
Bench: Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.957 of 2023
Arising Out of PS. Case No.-23 Year-2015 Thana- SAKRI District- Madhubani
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Tabassum Khatoon, aged about 20 years, Gender-Female Daughter of Md.
Habib, Resident of Village - Meghaul, P.S. - Sakari, District - Madhubani.
... ... Appellant/s
Versus
1. The State of Bihar
2. Bhawan Ji Jha, aged about 50 years, Gender-Male, Son of Braj Kishore Jha.
3. Vivek Kumar Jha @ Vivek Jha, aged about 27 years, Gender- Male, Son of
Bhawan Ji Jha.
Both Resident of Village - Meghaul, P.S. - Sakari, District - Madhubani.
... ... Respondent/s
======================================================
Appearance:
For the Appellant/s : Mr. Bimal Kumar, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Respondent/s : Mr. Bimal Kumar Jha, Advocate
======================================================
CORAM:HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date: 01-08-2025
The present criminal appeal has been preferred
under Section 372 of the Code of Criminal Procedure
(hereinafter referred as 'Cr.P.C') against the judgment of
acquittal dated 26.07.2023 passed by the learned Additional
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Sessions Judge-1st-cum-Special Judge SC/ST Act, Madhubani
in Sessions Trial No. 322 of 2017, CIS No. 322 of 2017, arising
out of Sakari P.S. Case No. 23 of 2015, whereby the concerned
trial Court has acquitted the respondent nos. 2 and 3 from the
charges leveled against them for the offence punishable under
Sections 323, 504 and 376 of the Indian Penal Code (hereinafter
referred as 'IPC').
2. Notices were issued to the Respondent Nos. 2
and 3 vide order dated 09.12.2024, upon which he appeared by
filing Vakalatnama through learned Advocate, Mr Bimal Kumar
Jha.
3. The prosecution case in brief is that the
appellant filed a complaint case in the Court of the learned
Chief Judicial Magistrate, Madhubani being Cr. Case No. 135 of
2015 stating therein that on 24.09.2014, she performed her
marriage with accused, namely, Vivek Jha @ Vivek Kumar Jha
in presence of her parents and other persons by Hindu Rites and
Rituals and Vivek Jha brought her in his house where he kept
her for 4-5 days in good manner and established physical
relation with her. Thereafter, accused, namely, Bhawan jee Jha
started abusing and assaulting her and asked her to be ousted
from his house and accused Vivek Jha brought her to her Maika
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but they use to meet together and establish physical relation but
accused, namely, Bhawan Ji Jha use to torture her and due to
which, accused, namely, Vivek Jha forcibly on 30.09.2014 took
her to the house of his Bahnoi, namely, Raman Kumar Mishra,
which is situated in village Andhra Tadi where he kept her for
15 days and used to establish physical relation with her and on
16.10.2014
, he sent her to Maika where she lived about one and
half months. She further alleged that on 02.12.2014 at about
8:00 AM, he took her to Delhi from Sakari by Train where he
kept her in a rented house and continuously committed rape on
her and accused, namely, Vivek Jha was working in a private
Job at Delhi. She further alleged that on 14.01.2015, he again
brought her from Delhi to Darbhanga by Sampark Kranti Train.
Raman Kumar Mishra, Vikash Jha and Bhawan Ji Jha were with
her husband Vivek Jha and brought her to the house but left her
at Sakari Station with two unknown persons from where she
herself came to her Maike. She further alleged that she got
knowledge that Vivek Jha is in Madhubani Court then she along
with her parents on 29.01.2015 went to Madhubani Court and
from there she wants to go with her husband but Vivek Jha
assaulted her and refuse to accept her as his wife and Bhawan Ji
Jha and his wife caught her hair and threw her on ground and
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told her that they will earn money after selling her and thereafter
her parents with the help of other persons brought her, as such,
all the accused persons abducted her and raped her.
4. On the basis of written complaint of the
informant Sakari P.S. Case No. 23 of 2015 dated 02.03.2015,
under Sections 323, 363, 366, 376, 504 of the IPC has been
instituted. The police after investigation submitted chargesheet
under Sections 323, 363, 366, 376, 504 and 498 (A)/34 of the
IPC and thereafter cognizance has been taken in the aforesaid
sections and after commitment the respondents have been
charged for the offence punishable under Sections 323, 504 and
376 of the Indian Penal Code.
5. During the trial, the prosecution examined
altogether eight witnesses in this case. Out of which PW 1
Muskima Khatoon, PW 2 Akhtari Khatoon, PW 3 Md. Habib,
PW 4 Tabusum Khatoon (Appellant), PW 5 Md. Shahanawaz
Khan (Investigating Officer), PW 6 Dr. Gargi Sinha, PW 7 Dr.
Rama Jha and PW 8 Rajeev Kumar.
6. In criminal appeal against acquittal what the
Appellate Court has to examine is whether the finding of the
learned trial Court is perverse and prima facie illegal. Once the
Appellate Court comes to the finding that the grounds on which
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the judgment is based is not perverse, the scope of appeal
against acquittal is limited, considering the fact that the legal
presumption about the innocence of the accused is further
strengthened by the finding of the learned trial Court. At this
point, it is imperative to consider the decision rendered by the
Hon’ble Supreme Court in the case of Surajpal Singh & Ors.
Versus The State reported in 1952 SCR 193, paragraph 13 of
which reads as under:
“..the High court has full power to review
the evidence upon which the order of
acquittal was founded. But it is equally well
settled that the presumption of innocence of
the accused is further reinforced by his
acquittal by the trial Court and the findings
of the trial Court which had the advantage
of seeing the witnesses and hearing their
evidence can be reversed only for very
substantial and compelling reasons.”
7. In the case of Ghurey Lal versus State of
Uttar Pradesh reported in (2008) 10 SCC 450 in paragraph 75,
the Hon’ble Supreme Court reiterated the said view and
observed as under:
“The trial Court has the advantage of
watching the demeanor of the witnesses
who have given evidence, therefore, the
appellate court should be slow to interfere
with the decisions of the trial court. An
acquittal by the trial court should not be
interfered with unless it is totally perverse
or wholly unsustainable.”
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8. On meticulous examination of all evidences
mentioned in impugned judgment, it is evident to note that PW
4 in her deposition at para 3 has stated that she got the case
typed and gave it to the Court and after finding the written
material correct, she had put her thumb impression on it
whereas in para 4 of her cross-examination, she stated that she
do not remember the day, date and month on which she had filed
the case in the Court. Further in para 12 of her deposition she
stated that she doesn’t remember the date of occurrence in the
complaint which has been filed in the Court. But from what has
been written in the complaint and which has been supported by
the witnesses, it is clear that the Complainant is a Muslim girl,
where the age of marriage is less than Hindu law and the
Complainant has said in her evidence that she was an adult
when she got married and accused Vivek Jha was also an adult.
If there was marriage between the two and there was physical
relationship in which both of them had consented then this does
not come under the definition of “rape” given under Section 375
of the IPC because both the parties got married and had physical
relationship with their consent, so a case of violation under
Section 376 of the IPC does not arise. Section 375 of the IPC
read as:
Patna High Court CR. APP (DB) No.957 of 2023 dt.01-08-2025
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“rape” if he-
(a) penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or
any other person; or
(b) inserts, to any extent, any object or a
part of the body, not being the penis, into
the vagina, the urethra or anus of a woman
or makes her to do so with him or any other
person; or
(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him
or any other person; or
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so
with him or any other person,
under the circumstances falling under any
of the following seven descriptions:–
(First)- Against her will.
(Secondly)- Without her consent.
(Thirdly)- With her consent, when her
consent has been obtained by putting her or
any person in whom she is interested, in
fear of death or of hurt,
(Fourthly)- With her consent, when the man
knows that he is not her husband and that
her consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.
(Fifthly)- With her consent when, at the
time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of
that to which she gives consent.
(Sixthly)- With or without her consent, when
she is under eighteen years of age.
(Seventhly)- When she is unable to
communicate consent.
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Explanation 1- For the purposes of this
section, “vagina” shall also include labia
majora.
Explanation 2- 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: Provided that a
woman who does not physically resist to the
act of penetration shall not by the reason
only of that fact, be regarded as consenting
to the sexual activity.
Exception 1- A medical procedure or
intervention shall not constitute rape.
Exception 2- Sexual intercourse or sexual
acts by a man with his own wife, the wife
not being under fifteen years of age, is not
rape.
9. Further various documents were marked as
exhibits on behalf of the accused and from the examination of
these documents, it is clear that the case filed by the parents of
complainant was declared false by the complainant herself.
PW5 is the investigating officer who submitted the charge sheet
and PW8 Rajeev Kumar is also an investigating officer who in
his examination-in-chief has supported the investigation report
and in paragraph 15 of his cross-examination he stated that as
per the complaint and statement of the complainant, he had
inspected the place of occurrence only once. More than one
place of occurrence has been mentioned in the complaint. In
para 17, he stated that he had not tried to obtain the affidavit
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mentioned in the complaint. During the entire investigation, he
had not seen the affidavit regarding their marriage nor he had
instructed complainant to obtain the affidavit of the so-called
marriage. PW6 Dr. Gargi Sinha, PW7 Dr. Rama Jha had
examined the complainant in this case and submitted their
reports in which no medical evidence of rape has been found at
the time of examination. The age of the victim is about 18 years.
PW1 and PW2 are the hearsay witnesses. PW3 is the father of
the victim and he has not disclosed about the rape in his
deposition. Further, the named witnesses in the complaint have
not been brought on trial, so material witnesses have been
withheld by the prosecution and the same has caused prejudice
to the defence.
10. As the prosecution has not come with a clean
hand and the deposition of the complainant/victim is itself
contradictory and not consistent.
11. While appreciating the kind of materials on
the record, we keep in mind the ratio of the judgment of
Hon’ble Supreme Court in Sharad Birdhichand Sarda versus
State of Maharashtra reported in (1984) 4 SCC 116 and
Dilavar Hussain and Ors. v. State of Gujarat and Anr., (1991)
1 SCC 253. Paragraph ‘153’ of Sharad Birdhichand Sarda
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(supra) is quoted here-under for a ready reference:-
“153. A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully established
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. It may be noted here that
this Court indicated that the circumstances
concerned “must or should” and not “may
be” established. There is not only a
grammatical but a legal distinction between
“may be proved” and “must be or should
be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra (1973) 2 SCC 793: 1973 SCC
(Cri) 1033: 1973 Cri LJ 1783 where the
following observations were made: [SCC
para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between ‘may be’ and
‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.”
12. Thus, on the basis of the evidence placed on
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record and the ratio laid down by the Hon’ble Supreme Court in
various cases on circumstantial evidence, it is held that the
charges against the accused/respondents are not proved beyond
shadow of all reasonable doubts and the necessary elements
mentioned in the charged sections are lacking to hold them
guilty under the charged sections. In the totality of the
circumstances which appears from the evidence on the record,
we are of the considered opinion that the learned trial Court has
not committed any error in appreciation of the evidences.
13. We are dealing with an appeal against
acquittal and shall keep in mind the principles governing the
cases of appeal against acquittal. The principles have been
reiterated by the Hon’ble Supreme Court in catena of decisions
and one of them is the case of H.D. Sundara and Others vs.
State of Karnataka reported in (2023) 9 SCC 581. Paragraph ‘8’
whereof is recorded here-under for a ready reference:-
“8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment State of Karnataka v.
H.K. Mariyapp, 2010 SCC OnLine Kar
5591 rendered by the High Court while
deciding an appeal against acquittal under
Section 378 of the Code of Criminal
Procedure, 1973 (for short “Cr.P.C“). The
principles which govern the exercise of
appellate jurisdiction while dealing with an
appeal against acquittal under Section 378
Patna High Court CR. APP (DB) No.957 of 2023 dt.01-08-2025
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“8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to re-
appreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after re-
appreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible.”
14. It is a case of acquittal in which the
presumption of innocence of the accused is, in fact, affirmed by
the learned trial Court. In fact, this Court is of the opinion that
the prosecution has failed before the learned trial Court to prove
the charges leveled against the respondents as opined by the
learned trial Court. In ultimate analysis of the entire materials
and record, we find no reason to interfere with the judgment of
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the learned trial Court.
15. This appeal has no merit. It is dismissed
accordingly.
(Sudhir Singh, J)
(Ramesh Chand Malviya, J)
Anand Kr.
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