Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1123 (RAJ)

Sultan Khan v. State of Rajasthan

2013-05-31

AMITAVA ROY

body2013
JUDGMENT 1. - Being aggrieved by the judgment and order dated 17.12.1986 passed by the learned Additional Sessions Judge, Jhalawar in Sessions Case No. 139/1985 convicting the appellant under Sections 450 & 376 IPC and sentencing him to suffer five years' rigorous imprisonment with a fine of Rs. 500, in default, to further undergo six months' rigorous imprisonment for his conviction under Section 450 IPC and to suffer rigorous imprisonment for seven years with a fine of Rs. 500, in default, to further undergo rigorous imprisonment for six months for his conviction under Section 376 IPC, he is in appeal. 2. I have heard Mr. Harendra Singh, learned counsel for the appellant and Mr. Javed Choudhary, learned Public Prosecutor, Rajasthan. 3. The facts, in brief, constituting the prosecution case and as available in the FIR dated 20.8.1984, are that in the evening of the previous day i.e.19.8.1984 at about 6:00 p.m., while Smt.Nanhi wife of Guljar Khan was sleeping in her house along with her child Insaf Ali, appellant-Sultan Khan entered her room and committed forcible intercourse with her. It was alleged that as the appellant thrust a piece of cloth in the mouth of the prosecutrix and further threatened her with a knife, she could not raise hue and cry. However, her child, seeing the occurrence, went out of the room and one Akbar came there and also saw the occurrence. The FIR disclosed that when Akbar accosted the appellant, the latter being infuriated, left the place of occurrence. It was further stated in the FIR that at the time of the occurrence, outside the house of the prosecutrix, two other persons, Asgar Sardar and Khwaja Sai were sitting and talking to each other. 4. On the FIR with the Police Station, Javar in the District of Jhalawar, a case was registered. On completion of the investigation, charge-sheet was laid against the accused-appellant under Sections 450 & 376 IPC and also against one Ishan Khan under Section 201 IPC. Both of them having denied the charges, trial followed, in course whereof, the prosecution examined the prosecutrix PW-3, Akbar PW-2 and Dr. Yogendrapal PW-1. There was no medical examination conducted on the prosecurix. The learned trial court, on a consideration of the materials on record, convicted and sentenced the appellant as above, while acquitting Ishan Khan. Both of them having denied the charges, trial followed, in course whereof, the prosecution examined the prosecutrix PW-3, Akbar PW-2 and Dr. Yogendrapal PW-1. There was no medical examination conducted on the prosecurix. The learned trial court, on a consideration of the materials on record, convicted and sentenced the appellant as above, while acquitting Ishan Khan. Noticeably, the appellant, in his statement under Section 313 Cr.P.C., while standing by his denial of the charge, claimed that he had been falsely implicated in view of subsisting strained relationship between him and the prosecutrix over her (prosecutrix) sister-in-law Jummi. 5. Mr. Singh has argued that the prosecution case is wholly unbelievable and ought to have been dismissed in limine. No trustworthy witness having been examined in support of the charge, the learned trial court ought to have acquitted the appellant as well, he argued. The learned counsel has insisted that not only, there is a conspicuous deviation from the version made in the FIR in the testimony of the prosecutrix at the trial rendering the prosecution case wholly incredible, Akbar Khan who was allegedly present at the time of the occurrence having denied the same completely, there was no basis to convict the appellant. Moreover, in absence of any medical examination of the prosecutrix, there was no proof of any sexual intercourse, and that too, by the appellant, he urged. He dismissed the finding of the forensic science examination about the existence of semen in the wearing apparels of the prosecutrix as wholly inconsequential, she being a married woman. According to him, this finding did not per se establish the culpability of the appellant. 6. Mr. Choudhary per contra has argued that the evidence of the prosecutrix, PW-3 being cogent and convincing, the learned trial court has rightly recorded a finding of guilt against the appellant, while acquitting the co-accused. According to the learned Public Prosecutor, the so-called variation in the narration in the FIR and the testimony of the prosecutrix being of no bearing on the veracity of the prosecution case, no interference with the impugned judgment and order is called for. 7. Before analyzing the rival submissions, it would be appropriate to notice, in brief, the evidence of the relevant witnesses. 8. PW-1 Dr. 7. Before analyzing the rival submissions, it would be appropriate to notice, in brief, the evidence of the relevant witnesses. 8. PW-1 Dr. Yogendrapal stated on oath that though the prosecutrix along with her husband had visited the dispensary, in which on 20.8.1984 he was posted, she was not subjected to any medical examination as there was no female nurse thereat. In cross-examination, he confirmed that the prosecutrix as well, in absence of any female nurse, refused to subject herself to medical examination. 9. PW-2 Akbar Khan on oath stated that he was not aware of any incident as alleged by the prosecution. Though he was declared hostile, his evidence in cross-examination did not support the prosecution case. 10. The prosecutrix, PW-3, while involving the appellant to be her violator, stated that in course of the offending act, her child went out of the room crying and one Akbar Khan, on arriving at the spot, raised objection. According to the prosecutrix, hot exchanges followed between the two. She stated that when later in the evening, her husband returned, she reported the incident to him, and on the next day, lodged FIR with the police. She stated that her wearing apparels and broken glass bangles were seized by the police. She admitted that she was not subjected to any medical examination. In cross-examination however, the prosecutrix stated that Akbar Khan had arrived at the place of occurrence after the sexual intercourse was over. She confirmed that at the relevant time Asgar Sardar and Khwaja Sai were sitting outside her house. She stated as well that the accused-appellant, after the offending act, sat on her cot for a long time. She also admitted, in cross-examination, that once her sister-in-law had been forcibly taken to her matrimonial home by her husband, Dhule Khan, also accompanied by the appellant. She however, denied the suggestion that as Jummi was not allowed to return to her marital home, there was a strained relationship with the appellant. 11. On an analysis of the evidence of these three witnesses, in my view, it cannot be concluded that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. She however, denied the suggestion that as Jummi was not allowed to return to her marital home, there was a strained relationship with the appellant. 11. On an analysis of the evidence of these three witnesses, in my view, it cannot be concluded that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. Not only there is an apparent departure in the sequence of events set out in the FIR as visible in the evidence of the prosecutrix at the trial, the presence of Akbar Khan who, as claimed by the prosecution, was present at the time of the offending act, has thereby been rendered highly doubtful. It passes ones comprehension as to how the appellant, who is in no way related to the prosecutrix could enter her house without being intercepted by Asgar Sardar and Khwaja Sai who, as per the FIR and also affirmed by the prosecutrix, were at the relevant time sitting outside. The statement of the prosecutrix that the appellant after committing the offence, sat for a long time on her cot, strikes at the substratum of the prosecution case. A person committing such a crime would never be expected to display such a conduct. The absence of medical examination of the prosecutrix is also fatal for the prosecution as there is no evidence of recent act of forcible intercourse with her. The presence of semen on her wearing apparels, as has been rightly contended on behalf of the defence, is inconsequential, she being a married lady, the same having not been seized on the date of the occurrence. The suggestion made by the defence with regard to strained relationship between the prosecutrix and the appellant is supported by his (appellant's) version in his cross-examination under Section 313 Cr.P.C.. 12. In view of all above, I am constrained to hold that the prosecution had not been able to prove charge against the appellant warranting his conviction as recorded by the learned trial court. The impugned judgment and order is thus set aside and the appellant is set at liberty. His bail bonds stand discharged.The appeal is allowed.Appeal allowed. *******