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2011 DIGILAW 654 (RAJ)

Shekhiya @ Shekh Mohd. v. State of Rajasthan

2011-03-29

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - This appeal has been filed by the appellant Shekhiya @ Shekh Mohd. s/o Dildar Khan, b/c Musalman , r/o Borunda, District Jodhpur against the judgment of conviction and order of sentence dated 27.11.2007 passed by the learned Special Judge , Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases , Merta, in Sessions Case No.47/2006 by which the learned trial court convicted the accused appellant for the offence under Sections 363, 366A, 342, 323 and 376 of the IPC and section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him for the offence under section 363 IPC to three years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo two months' rigorous imprisonment, for the offence under section 366 A IPC to five years' rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment, for the offence under section 342 and 323 IPC, to six months' rigorous imprisonment , for the offence under section 376 IPC to seven years' rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine, to further undergo six months' rigorous imprisonment and for the offence under section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, to five years' rigorous imprisonment and a fine of Rs. 3,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. All the sentences were ordered to run concurrently. 2. The brief facts of the case arising out of this appeal are that on the intervening night of 16.06.2006 and 17.06.2006, at about 02.05AM a written report was filed by complainant Nemi Chand Damani, stating that his daughter named Rekha went on 15.06.2006 at about 03.00 PM for bringing the key of the house and came back on 16.06.06 at about 08.00 PM. On being enquired, she stated that Dhaniya and one another boy accompanying him, forced her to sit on the motor cycle and they brought her to forest of Borunda and ultimately to the Ganesh Temple and at that place ,Dhaniya started to beat her and Dhaniya after some time, committed rape with her. The another boy, accompanying Dhaniya, remained outside the temple. In the night she remained in the forest. The another boy, accompanying Dhaniya, remained outside the temple. In the night she remained in the forest. On the basis of that report, criminal case No.63/2006 under section 366A, 376, 323 and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was registered and the investigation commenced. 3. During the course of investigation, medical examination of the prosecutrix was conducted and the present appellant Shekhiya @ Shekh Mohd. was arrested and he was also medically examined by the Medical Officer and statement under section 164 Cr.P.C. was got recorded. The 'Salwar' and other under garments worn by the prosecutrix' were seized and they were sent to the Forensic Science Laboratory' for examination. After completion of investigation, a charge sheet was filed in the court of learned Addl. Chief Judicial Magistrate, Merta, from where the case was committed to the court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases , Merta, for trial. 4. The learned trial court, charged the accused appellant for the offence under section 363,366A, 342,323 and 376 IPC and section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , to which the accused appellant did not plead guilty and claimed to be tried. 5. The prosecution examined as many as 13 witnesses , namely, PW/1Dr.Savita Tak, PW/2 Chanda Ram, PW/3 Hanuman Ram, PW/4 Pappu Damami, PW/5 Nemi Chand, PW/6 Smt.Radha, PW/7 Mahendra, PW/8 Rekha Damami, PW/9 Dr.Rajendra Prajapat, PW/10 Dr.Jassa Ram , PW/11 Satveer, PW/12 Sawant Ram and PW/13 Amit Sihag. 6. The incriminating evidence adduced against the accused was put to him for explanation under section 313 Cr.P.C. and the accused produced the following six witnesses namely , DW/1 Shekhiya @ Shekh Mohd., DW/2 Kalu, DW/3 Salim, DW/4 Sampat Raj, DW/5 Sikandar and DW/6 Durga Singh, in defence. 7. The learned trial court, after hearing both the parties, found the accused appellant guilty for the offence under the above sections and sentenced him as indicated above. Aggrieved by the above order, the appellant has filed this appeal before this court. 8. On 03.02.2011 this Court appointed Mr.Ravi Panwar, Advocate, as amicus curiae, to assist the Court because the counsel for the appellant who filed the appeal remained absent. 9. Aggrieved by the above order, the appellant has filed this appeal before this court. 8. On 03.02.2011 this Court appointed Mr.Ravi Panwar, Advocate, as amicus curiae, to assist the Court because the counsel for the appellant who filed the appeal remained absent. 9. The learned amicus curiae appearing on behalf of the accused appellant , vehemently contended that the judgment of conviction and order of sentence passed by the learned trial court cannot be sustained, because the learned trial court erred in appreciating the evidence of PW/8 Rekha, and further the statement of Rekha, as deposed in the court, is against the natural human behaviour and further Ex.P/8, the First Information Report, does not contain the name of the appellant as the accused, and in the First Information Report the complainant attributed the act of the offence of rape, to one Dhaniya and in the First Information Report it is specifically mentioned that another boy, who was accompanying Dhaniya, remained outside the temple and no overt act was attributed in the First Information Report to the appellant, and after lodging of the First Information Report, the investigating officer recorded the statement of the prosecutrix under section 161 Cr.P.C. in which on 17.06.06 the prosecutrix stated that instead of present appellant, Shekhiya @ Shekh Mohd. brought her forcibly in the bus and in Ganesh temple he committed the forcible rape with her and thus, there is a material contradiction in the first Information Report and the police statement and further on 24.06.06 police got examined Rekha under section 164 Cr.P.C. in which she deposed that Shekhiya @ Shekh Mohd. Committed rape with her. 10. The learned amicus curiae, further contended that the prosecutrix, PW8 Rekha, deposed in her statement in the court during the course of trial that Shekhiya @ Shekh Mohd. came near her with a knife and after a threat to her, she was pushed in the bus on the road and as per prosecution examination, there were 5-6 passengers in the bus and on the nock of the knife she was brought to Ganesh Temple and there he committed 3-4 times rape with her. came near her with a knife and after a threat to her, she was pushed in the bus on the road and as per prosecution examination, there were 5-6 passengers in the bus and on the nock of the knife she was brought to Ganesh Temple and there he committed 3-4 times rape with her. Thus it is not possible to kidnap a girl of about 15-16 or 20 years of age in a bus, in which 5-6 passengers were there, in addition to driver, and the prosecution story as unfolded by the evidence cannot be relied on and, therefore, the judgment of conviction and order of sentence, passed by the learned trial court cannot be sustained and requires to be set aside. 11. The learned amicus curiae, appearing on behalf of the appellant, in support of his argument contended that as per the statement of PW/1 Dr.Savita Tak there were no external injuries on the body of prosecutrix Rekha and there were no signs of any resistance or force used by her. This statement of PW/1 Dr.Savita Tak further creates doubt in the testimony of PW/8 Rekha. 12. The learned amicus curiae appearing on behalf of the appellant further contended that there is a major contradiction regarding the age of the prosecutrix because as per Ex.P/11, the age of the prosecutrix on the date of the offence was 16 years, whereas as per medical report Ex.P/12, it was 21 to 22 years. 13. Per contra, the learned Public Prosecutor defended the judgment of the learned trial court and contended that the age of the prosecutirx, at the relevant time was below 16 years, and from the statement of PW/8 Rekha, coupled with the report of the Forensic Science Laboratory, Ex.P/14, offence against the present appellant is well proved and the judgment of the learned trial court is sustainable because the Salwar and the panty of the prosecutrix and the underwear of the accused, were found to have been contained human semen as per report Ex.P/14 and this evidence itself is sufficient to prove the offence against the present accused appellant under section 376 IPC and other offences charged. 14. 14. The learned amicus curiae appearing on behalf of the appellant contended that underwear was shown in packet as S/3 as Ex.No.5, has not been proved to be seized by the investigating officer and the seizure memo has not been exhibited nor any of the witnesses stated in their statement that the underwear of the accused was seized during the course of investigation. 15. I have pondered over the rival contentions of both the parties and also perused the evidence on record as also the judgment of the trial court. 16. It is established fact that on 17.06.06 at the time of the examination of the body of the prosecutrix, no external injury was found on the body of the prosecutirx and there was no signs of any forcible sexual offence or any offence of rape. 17. PW/8 Rekha in her statement in the court deposed that due to threat given by Shekhiya @ Shekh Mohd. she stated to her father that she was brought by Dhaniya along with one more boy whereas actually she was kidnapped by Shekhiya @ Shekh Mohd. and as per her statement sufficient force was used by the accused to commit the offence of rape inspite of her resistance and as per her statement, on the nock of the knife, she was kidnapped in a bus in which there were 5-6 passengers. Further, she stated in her crossexamination that Sapna and Kamla were accompanying her when she was forced to follow him by Shekhiya @ Shekh Mohd. by way of kidnapping. The statement of this witness are self contradictory because on the one hand she stated that at the nock of the knife she was forced to sit in the bus and further she did not cry due to the threat of the knife. Had there been any act of resistance on the part of the prosecutrix, it would not have been possible for the accused to force her to follow him. Because as per the statement of PW/8 Rekha there was the driver, the conductor and other persons also in the bus and the persistence of the threat upto the intervening mid night of 16.06.06 and 17.06.06 cannot be relied upon because just after reaching her residence, there cannot be any fear of threat and the first version which she said to her father was that Dhaniya kidnapped her forcibly. The contradiction in the first Information Report and the statement recorded under section 161 and 164 Cr.P.C. is material. Evidence of the prosecutrix PW/8 Rekha is so unnatural and against the normal human behaviour that her evidence regarding kidnapping and forcibly bringing her to Ganesh Temple and further forcibly committing the offence of rape, against her will, cannot be relied upon. It cannot be relied that even after the release of the prosecutrix in the night she remained in the forest for such a long time and after reaching her house at about 08.00PM she remained under the fear of threat of the accused because, had there been any resistance on the part of the prosecutrix PW/8 Rekha, there would have been certainly injuries on her body including on the private parts. The only evidence which the learned Public Prosecutor showed is regarding the presence of semen on the underwear of the accused appellant and that of the Salwar and Panty of the prosecutrix, does not connect the present accused appellant to the alleged crime, because the recovery of the underwear of the accused appellant has not been proved by the prosecution by any of their evidence. 18. Evidence against the accused appellant is solely that of PW/8 Rekha and that too does not inspire any confidence due to the unnatural behaviour of the prosecutirx and further finding of no injury on the body of the prosecutirx makes the statement of the prosecutirx as unreliable. 19. In view of the above fact the evidence of prosecutrix cannot be relied and no other evidence is available against the accused appellant for the commission of offence as charged. 20. Accordingly, the learned trial court erred in appreciating the evidence of the prosecution in holding the accused appellant guilty for the offence under Sections 363, 366A, 342, 323 and 376 of the IPC and section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.Resultantly, the judgment of conviction and the order of sentence passed by the learned trial court cannot be sustained and it is hereby set aside and the accused appellant Shekhiya @ Shekh Mohd. s/o Dildar Khan is acquitted of the charges levelled against him. He is in judicial custody, he be released forthwith if not required in any other case. The appeal is allowed accordingly.Appeal allowed. *******