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Rajasthan High Court · body

2002 DIGILAW 504 (RAJ)

Bhagwane Khan v. State of Rajasthan

2002-02-27

O.P.BISHNOI

body2002
JUDGMENT 1. - This appeal has been preferred by Bhagwane Khan Alias Bhagwan, Jagmal Khan, Mangu Khan Alias Mangl Lal and Surje Khan Alias Surja against the judgment dated 30.4.1991 delivered by the Special Judge SC/ST (Prevention of Atrocities) Court, Bikaner. All the four appellants have been found guilty under Sections 366 and 376 of the Indian Penal Code. Under Section 366 of the Indian Penal Code, each one has been awarded five years R.I. and a fine of Rs. 500/-. For non-payment of fine further R.I. for one year has been awarded. For the offence under Section 376 of the Indian Penal Code, each one has been awarded 10 years R.I. and a fine of Rs. 1,000/- and for non-payment of fine further R.I. for one year. 2. The prosecution story, in brief, is that on 15.7.1989, PW5 Bheru Khan S/o Hazari Khan, resident of Village Chitana lodged an oral F.I.R., Ex.P2 at Police Station Panchu. According to the F.I.R., the sister of the complainant Bheru Khan, PW 3 Kumari Jhankari disappeared from their house sometime during the night interve lg 13/14th July, 1989. At about 4 Oclock, her mother discovered that Kumari Jhankari was not in the house. Accordingly, a search was made and in the morning, DW 1 Khumaram and one Bhanwaroo Khan gave the information that in the earlier hours of 14.7.1989, he and Bhanwaroo Khan saw the accused Bhagwane Khan going with a woman. According to the F.I.R., the accused Bhagwane Khan was accompanied by two more persons, who were Phusaram and Kanaram. 3. Accordingly, a case under Sections 363 and 366 of the Indian Penal Code was registered against the three accused-persons Bhagwane, Phusaram and Kanaram. According to the prosecution story, during the investigation Kumari Jhankari was recovered from the possession of accused Bhagwane Khan on 18.7.1989 vide recovery memo Ex.R4. Her statement Ex.D1 under Section 161 of the Criminal Procedure Code was recovered on 18.7.1989, wherein she stated that during the night intervening 13/14th July, 1989, she was sleeping in her house and at about mid- night, she eloped with the accused Bhagwane Khan as per programme. According to her statement (Ex.D1), Bhagwane Khan since long was enticing her to live with him and they both decided that during the night, she will leave her house and go with Bhagwane Khan. According to her statement (Ex.D1), Bhagwane Khan since long was enticing her to live with him and they both decided that during the night, she will leave her house and go with Bhagwane Khan. After covering certain distance on foot, a jeep, alongwith four persons, was found parked. Mohan Singh, Papiya Bishnoi, Kishan Singh and one more were waiting near the jeep. They went to village Alai in the jeep and stayed in a hut. Next day in the evening, they went to a Railway Station and stayed in a room, where Bhagwane Khan forcibly raped her. Thereafter, she was taken to various villages and also to an Advocate, who got a document thumb-marked from her. After few days, Mohan Singh, Kishan Singh and Bhagwane Khan brought her back to village Alai. Kishan Singh and Mohan Singh went to some unknown destination and Bhagwane Khan took her to a dhani and lodged her there. Again he committed rape in the dhani. Subsequently, she was taken to another dhani, where she was subjected to rape by Bhagwane Khan for two days. On 18.7.1989, while Bhagwane Khan was taking her to some other place, the police intercepted them and she was recovered. In nut-shell, she blamed Bhagwane Khan, Mohan Singh, Kishan Singh, Ganesh and Papiya Bishnoi for taking her forcibly in a jeep. According to the prosecution story, the statement of Jhankari was recorded by the Judicial Magistrate No. 1, Bikaner on 28.7.1989 under Section 164 of the Criminal Procedure Code. In this statement, she stated that it was the accused, Jagmal Khan who entered into her house during the night and when she was offering water to him for drinking, Jagmal Khan, Surje Khan and Bhagwane Khan overpowered her and she was lifted bodily by Surje Khan and was carried in this way to certain distance where a jeep and four persons with a gun were waiting, she was brought to village Alai where Surje Khan, Jagmal Khan, Mangu Khan and Bhagwane Khan committed rape one after the other. She repeated the story that she was taken to Nagaur where she was made to thumb mark on a paper by Bhagwane Khan and ultimately while she was going with Bhagwane Khan, the police intercepted them. She repeated the story that she was taken to Nagaur where she was made to thumb mark on a paper by Bhagwane Khan and ultimately while she was going with Bhagwane Khan, the police intercepted them. After completion of the investigation, a challan was filed against the four appellants in the Court of Judicial Magistrate, Nokha, from where the case was committed to the Court of Sessions Judge, Bikaner and ultimately, it landed in the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases by way of transfer. Charges were framed against all the four appellants under Sections 366 and 376 of the Indian Penal Code. All the four pleaded not guilty. 4. The prosecution examined PW 1 Diney Khan, PW 2 Dr. Chandra Mohan, PW 3 Jhankari PW 4 Kumari Sahu PW 5 Bheru Khan and PW 6 Pramod Kumar, Sub-Inspector. DW 1 Khumaram and DW 2 Dr. Chandra Mohan were examined by the appellants in the defence. The learned trial Judge then heard the arguments and delivered the judgment dated 30.4.1991 against which this appeal has been filed. 5. I have heard the learned counsel for the appellants and the learned Public Prosecutor and have perused the record of the case. 6. The iearned counsel for the appellants has taken me through the evidence and has pointed out about the various infirmities which have cropped up. The learned Public Prosecutor, on the other hand, has described the contradictions as minor and has supported the conclusions drawn by the learned trial Court. 7. After hearing the two sides and going through the evidence, I am of the clear view that the conclusions drawn by the learned trial Court against the appellants are not sustainable. The evidence which has come on record does not inspire confidence and the findings of guilt arrived at under Sections 366 and 376 of the Indian Penal Code are not at all sustainable. The principle witness is PW 3 Jhankari and as pointed out earlier she has completely changed the story which was given by her in her first statement (Ex.D1), recorded under Section 16 i or the Criminal Procedure Code. According to her statement (Ex.D1), she was quite friendly with Bhagwane Khan, who for a long time was enticing her with various offers and she chalked out a plan to leave her parental home and run away with Bhagwane Khan. According to her statement (Ex.D1), she was quite friendly with Bhagwane Khan, who for a long time was enticing her with various offers and she chalked out a plan to leave her parental home and run away with Bhagwane Khan. She has stated that she left her house of her own volition and walked with Bhagwane Khan for about two kilometers, where a jeep with Mohan Singh, Papiya Bishnoi and Kishan Singh was waiting. However, in her subsequent statement, recorded under Section 164 of the Criminal Procedure Code, she changed the whole story. This time, she stated that she was bodily lifted by Surje Khan and was carried up to the jeep on his back, it is significant that there is no mention of appellants Jagmal Khan, Mangu Khan and Surje Khan in her first statement Ex.D1 recorded under Section 161 of the Criminal Procedure Code. 8. Her sworn testimony to the effect that she was forcibly lifted by the appellant Surje Khan and was carried to the jeep in such condition is unacceptable. Her brother PW 5 Bheru has stated on oath that after the disappearance of Kumari Jhankari, foot-prints of three male persons and one female person which went up to the Nadi were found. From this, it is evident that the statement of Jhankari to the effect that she was bodily lifted and was carried on the back of the appellant is untrue, it is not in dispute that Bhanwaroo Khan and Khumaram were the persons who were able to see Jhankari going in the company of the accused. They were, thus, the best witnesses to show as to whether jhankari was being taken forcibly or was going of her own volition. Strangely enough, neither Khumaram nor Bhanwaroo Khan was examined by the prosecution in support of its story. Khumaram was examined by the appellants as DW1 and he has stated that he alongwith Bhanwaroo Khan saw Jhankari going with Bhagwane Khan. He has stated to the effect that they had a conversation during which Jhankari told them that her mother has sent her with the accused Bhagwane Khan. The accused Bhagwane Khan in his statement recorded under Section 313 of the Criminal Procedure Code, has stated that Jhankari was sent with him by her mother and Jhankri went with him of her own volition. The accused Bhagwane Khan in his statement recorded under Section 313 of the Criminal Procedure Code, has stated that Jhankari was sent with him by her mother and Jhankri went with him of her own volition. Strangely enough, the mother of Jhankari has also not been examined, although, her name finds place in the calender of the witnesses. Jhankaris grand-father Diney Khan, brother Bheru Khan and sister Kumari Sahu have all been examined but her mother has not been examined. This gives strength to the defence version that Jhankari went with Bhagwane Khan with the permission of her mother. 9. In her statement recorded under Section 164 of the Criminal Procedure Code, Jhankari has mentioned the names of Ganesh, Kanaram, Phusaram, Mularam, Dharma, Bhura etc., with whom she came into contact between 14.7.1989 to 18.7.1989. None of the these persons have been examined in the evidence. According to her statement, she was taken to about half a dozen places and she was made to stay in various houses. It was desirable on the part of the Investigation Officer to go to these places and make enquiry from the persons in whose houses, Jhankari was allegedly kept, to know as to whether she was under forcible restraint or was enjoying company of the appellants. In the statement Ex.D1, Mohan Singh, Papiya and Kishan Singh have been named, if the Investigating Officer found that they were not the kidnappers then, naturally they were the proper witnesses and it was desirable that their statements should have been recorded under Section 161 of the Criminal Procedure Code, but the Investigating Officer has worked with a closed mind and one set of accused persons, disclosed in Ex.D1, has been changed by another set of accused persons, in Jhankaris subsequent statement. 10. I find no reason to disbelieve the testimony of DW 1 Khumaram. From the testimony of DW 2 Dr. Chandra Mohan, it is clear that after the X-ray examination, he found Jhankari to be alleged between 18 to 19 years. She, thus, was not a minor at the time of the alleged incident. There is no circumstance at this stage that she was taken away against her will or was subjected to sexual inter-course against her will.Consequently, the appeal is allowed. The judgment of the learned Trial Court, finding the appellants guilty, is set aside. She, thus, was not a minor at the time of the alleged incident. There is no circumstance at this stage that she was taken away against her will or was subjected to sexual inter-course against her will.Consequently, the appeal is allowed. The judgment of the learned Trial Court, finding the appellants guilty, is set aside. The appellants are acquitted from the charges and the amount of fine, if deposited by them, shall be refunded to them.Appeal allowed. *******