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2018 DIGILAW 1605 (RAJ)

Hamid Khan v. State of Rajasthan

2018-07-31

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Appellants have preferred these appeals aggrieved by judgment and order dated 29.1.2008 passed by Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions Case No.26/2006 whereby the Court below has convicted appellants under Section 366, 376 (2) (g) IPC and has imposed sentence for 10 years rigorous imprisonment and fine of Rs. 1,000/-. On non payment of fine to further undergo three months simple imprisonment and for offence under Section 366 IPC Court has sentenced the appellants for five years rigorous imprisonment and fine of Rs. 1,000/. On non-payment of fine to further undergo three months simple imprisonment. 2. It is contended by counsel for the appellants that the alleged incident is stated to have been taken place on 29th August, 2005. FIR was lodged on 16.9.2005 after an inordinate delay of 18 days. It is contended that the allegation was against five persons, two of co-accused-Ismail and Shabbir have been discharged. Abdul Rajjak has been acquitted after the present conviction order and Babu Singh and Jibrahim against harbouring the criminals have been acquitted under Section 216 Cr.P.C., 1973 3. It is contended that prosecutrix in trial of Abdul Rajjak has turned hostile and has not identified Abdul Rajjak as a result of which Abdul Rajjak stands acquitted by the trial Court. An application has been filed under Section 391 Cr.P.C., 1973 for taking further evidence on record. Copy of the statement of prosecutrix has been produced with the application. This Court permitted the appellant to argue on statement of the prosecutrix recorded by the Court after disposal of the present Sessions Case. It is contended by the counsel for the appellants that prosecutrix has not identified Abdul Rajjak against whom she has levelled allegation of rape as a result of which Abdul Rajjak stands acquitted. It is contended that there is no explanation for the inordinate delay in filing the FIR, husband of prosecutrix was informed on the same day, he reached the village after ten days but still there was delay in lodging of FIR. It is also contended that in FIR Ex.P6 which is a typed copy, name of present appellants is mentioned, but no details about the offence is mentioned. It is also contended that in FIR Ex.P6 which is a typed copy, name of present appellants is mentioned, but no details about the offence is mentioned. It is also contended that there is no injury on the person of prosecutrix and she has admitted that after the alleged offence, she stayed with her husband and had cohabited with him. It is argued that the marks of semen on her clothes cannot be considered as she had cohabited with her husband after the alleged incident. It is also contended that Ex.P-40 is the FSL report in which semen was detected on the clothes of the prosecutrix but no semen was detected on "Dari" upon which there is allegation that rape was committed. A ground is also raised that FSL report was not put to the accused in statement under Section 313 Cr.P.C., 1973 and as such the same cannot be considered by the Court as appellants were not provided any opportunity with regard to FSL report. 4. With regard to statement of the witnesses, it is contended that PW-2-Reshmi, who happens to be the neighbour, in her examination-in-chief has stated that the prosecutrix informed her that the present appellants and Abdul Rajjak have committed rape with her, but in cross-examination she has stated that prosecutrix never informed her about the incident and that she has in her examination-in-chief, given evidence as per the wish of her husband. 5. With regard to PW-6, it is contended that she has stated that the report was got typed at the police station whereas complainant, who happens to be the father of prosecutrix, has mentioned that the report was got written by an unkown person on a plain paper. It is contended that PW-15, 16, 17, 19 and 23 have turned hostile. 6. Learned Public Prosecutor has opposed the appeals. His contention is that prosecutrix and the complainant party are belongs to a village. Prosecutrix is an illiterate lady. FIR Ex.P-6 bears her thumb impression. Her husband had gone to Udaipur to earn his livelihood and he has mentioned in his statement that his contractor was away as a result of which he could not turn-up without informing him. His contention is that prosecutrix and the complainant party are belongs to a village. Prosecutrix is an illiterate lady. FIR Ex.P-6 bears her thumb impression. Her husband had gone to Udaipur to earn his livelihood and he has mentioned in his statement that his contractor was away as a result of which he could not turn-up without informing him. It is also contended that delay in lodging of FIR cannot be made a ground for acquitting the accused when prosecutrix in her statement recorded before the Magistrate and in her Court statement has made specific allegation against the accused-persons with regard to gang rape. 7. With regard to acquittal of Abdul Rajjak, it is contended by learned Public Prosecutor that in the statement recorded in the trial of Abdul Rajjak the prosecutrix has reiterated the factum of rape being committed by the appellants and Abdul Rajjak. In that view of the matter, it is argued that appellants cannot get any benefit of her not identifying Abdul Rajjak during trial of Abdul Rajjak and consequent acquittal of Abdul Rajjak. 8. With regard to not putting FSL report to the appellants in statement recorded under Section 313 Cr.P.C., 1973 it is contended that FSL report Ex.P-40 was put to the accused and the Court below has not based the conviction on the FSL report. It is contended that Court has convicted the appellants on the basis of statement of prosecutrix-PW6. 9. It is also contended that delay in lodging of FIR cannot be considered as fatal to the case of the prosecution as prosecutrix and the complainant belonged to a rural background. Prosecutrix is a married lady, her husband was informed, he reached the village after few days and after consultation amongst themselves the FIR was lodged. It is also contended that there is no enmity between the prosecutrix and the appellants so as to falsely implicate the appellants. 10. Learned Public Prosecutrix has drawn my attention towards the statement of PW3-mother of prosecutrix as well as the statement of prosecutrix recorded under Section 164 Cr.P.C., 1973 11. I have considered the contentions of the parties and have perused the judgment passed by the Court below. 12. Prosecutrix PW6 is a 20 years old illiterate lady. Appellants alongwith Abdul Rajjak and two persons came to the house of father of prosecutrix and informed them that mother of prosecutrix is on death bed. I have considered the contentions of the parties and have perused the judgment passed by the Court below. 12. Prosecutrix PW6 is a 20 years old illiterate lady. Appellants alongwith Abdul Rajjak and two persons came to the house of father of prosecutrix and informed them that mother of prosecutrix is on death bed. On that pretext they took away the prosecutrix. Later on at an isolated place they stopped the vehicle and committed rape with the prosecutrix. PW6 prosecutrix has in detail mentioned the incident and how she was subjected to gang rape by the accused-appellants and Abdul Rajjak. The statement recorded under Section 164 Cr.P.C., 1973 is also a detailed version of the incident. 13. The contention of learned counsel for the appellants that FIR is not mentioning the incident has no force since it is mentioned in the FIR that condition of prosecutrix was not stable and after her condition was become stable she informed that she was raped by the persons who had kidnapped her. Thereafter, she was produced before the Magistrate and her statement was recorded which is Ex.P-10 wherein she has in detail mentioned the incident which has taken place with her. She has also mentioned in her statement that her in-laws did not support her and after her husband returned, FIR was lodged. She has given explanation for the delay in lodging of FIR. 14. In view of the fact that complainant and prosecutrix belonged to a rural background, delay in lodging of FIR cannot be considered to be ground so as to give benefit to the appellants. Statement of prosecutrix was recorded before the Court and the appellants were not able to shattered the witnesses with regard to allegation of commission of rape. 15. PW-12 Hussain father of prosecutrix has stated that the appellants and Abdul Rajjak kidnapped the prosecutrix on the pretext that condition of mother of prosecutrix was bed and she was on her death bed and thus, took away the prosecutrix on that pretext. As far as there being no injury on the person of prosecutrix is concerned, prosecutrix was examined after 18 days of the incident. Chances of there being marks of injury on the person after 18 days are not there. Hence, the same cannot give any benefit to the appellants. 16. The statement of prosecutrix is to be given weightage. As far as there being no injury on the person of prosecutrix is concerned, prosecutrix was examined after 18 days of the incident. Chances of there being marks of injury on the person after 18 days are not there. Hence, the same cannot give any benefit to the appellants. 16. The statement of prosecutrix is to be given weightage. No explanation is coming forward on behalf of the appellants and there is no reason why they would be falsely implicated. As far as the acquittal of Abdul Rajjak is concerned, prosecutrix in her statement recorded before the Court in trial of Abdul Rajjak has reiterated the version of rape by Abdul Rajjak and the appellants but has not identified Abdul Rajjak as a result of which Abdul Rajjak stands acquitted. However, as far as case of appellants is concerned, there was ample evidence before the Court below to convict the appellants. 17. Minor discrepancies in the statement cannot be made a ground for allowing the appeals in view of the specific statement of the prosecutrix with regard to commission of rape. I do not find any error in the impugned judgment and order. 18. In view of the same, no ground is made out for setting aside the judgment and orders passed by the Court below. Hence, the present appeals are dismissed. The judgment and order passed by the Court below is upheld. Since documents filed by the appellants have been considered, the applications stand disposed of. 19. A copy of this judgment be placed in the connected file.