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2025 DIGILAW 1262 (RAJ)

Farooq S/o Nazir Mohd. v. State of Rajasthan

2025-05-07

PUSHPENDRA SINGH BHATI, SUNIL BENIWAL

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ORDER : 1. This criminal appeal under Section 374 Cr.P.C . has been preferred by the accused-appellant laid a challenge to the judgment of conviction and order of sentence dated 10.08.1999 passed by the learned Special Judge, SC/ST Cases, Pratapgarh in Special Sessions Case No.57/98 (State of Rajasthan vs. Farooq), whereby the accused-appellant has been convicted and sentenced as below: Offence under Section(s) Sentence(s) Fine(s) 376 IPC 10 Years’ R.I. Rs.500/-, in default of which, was ordered to undergo further 3 months’ R.I. 3(2)(v) of SC/ST Act Life Imprisonment Rs.500/-, in default of which, was ordered to undergo further 3 years’ R.I. 2. The salient facts of the case, as discerned by this Hon’ble Court, reveal that one Ratni, belonging to the Khatik caste, lodged an oral report at Police Station Bhadesar. She stated that after visiting Avri Mata Temple from her village and having Darshan, she was returning in Sanwariyaji's Bus. She alleged that a man standing near her in the Bus made inquiries and introduced himself as Farooq. He accompanied her until Bhadsora Chauraha where he offered her sugar-cane juice, which she declined. Despite her refusal, he allegedly forced her to disembark and drink the sugar-cane juice. During that time, the Bus, in which, she had been travelling departed. Farooq then offered her to drop on his motorcycle. They proceeded from Chauraha to Sanwariyaji Bus stand, where Farooq retrieved his motorcycle and took her to Chittorgarh. She alleged that she was threatened, which prevented her from disclosing the incident to anyone. They watched a Cinema in Chittorgarh until 9 o'clock. Thereafter, they returned to Asawara Mata, where they went to sleep in Farooq's Ghumti. She further alleged that at about 2 o'clock in the night, Farooq removed her clothes and, threatening her with dire consequences, forcibly had sexual intercourse with her. When she shouted, some individuals standing outside the Ghumti approached, but departed upon seeing Farooq. Subsequently, Farooq closed the window of the Ghumti and offered her Rs. 500/- for her silence, then instructed her to return home. She thereafter, located the address of the Police Station and reported the matter. 2.1. On the basis of the aforesaid report, an FIR bearing FIR No.111/1998 was lodged before the concerned Police Station against the accused-appellant for the offences under Section 376 IPC and Section 3 of SC/ST Act and the investigation commenced accordingly. She thereafter, located the address of the Police Station and reported the matter. 2.1. On the basis of the aforesaid report, an FIR bearing FIR No.111/1998 was lodged before the concerned Police Station against the accused-appellant for the offences under Section 376 IPC and Section 3 of SC/ST Act and the investigation commenced accordingly. After investigation, a challan was filed against the accused-appellant and the matter was committed to the Court of Special Judge, SC/ST Cases, Pratapgarh. 2.2. The learned Trial Court framed the charges against the accused-appellant under the aforementioned provisions of IPC ; the said charges were read over to the accused-appellant, which he denied and claimed to stand due trial, whereafter, the trial commenced accordingly. 2.3. During the course of trial, the prosecution produced as many as 15 witnesses (PW-1 to PW-15) and got exhibited documents (Exhibit P-1 to P-15) whereafter, the accused-appellant was examined under Section 313 Cr.P.C ., in which he pleaded innocence and false implication in the criminal case in question. 2.4. Thereafter, upon hearing the contentions of both the parties as well as considering the material evidence placed on record, the learned Trial Court, convicted and sentenced the accused- appellants, as above, vide the impugned judgment of conviction and order of sentence dated 10.08.1999, against which the present appeal has been preferred by the accused-appellant. 3. Mr. Rajiv Bishnoi, learned counsel appearing for the accused- appellant, submits that the prosecution’s case lacks testimony of eyewitness, complete chain of circumstantial evidence, Forensic Science Laboratory (FSL) reports, medical evidence of injury or any kind of doctor’s evidence, which could attribute the rape to the present accused-appellant, therefore, the sole material evidence relied upon by the prosecution is the statement of the prosecutrix, rendered in her capacity as PW-2. 3.1. Learned counsel has drawn the attention of this Court to the deposition of the prosecutrix wherein she averred that she went alone to offer Darshan at Avri Mata temple and was returning back at about 5:00 PM. At Bhadsora Chauraha, a boy, introducing himself as Farooq, the present accused-appellant, persuaded her to alight from the Bus. The prosecutrix further deposed that the accused-appellant had trailed the Bus on his motorcycle from Avri Mata temple and offered her to drop at Chittorgarh, which she accepted, accompanying him on his motorcycle. At Bhadsora Chauraha, a boy, introducing himself as Farooq, the present accused-appellant, persuaded her to alight from the Bus. The prosecutrix further deposed that the accused-appellant had trailed the Bus on his motorcycle from Avri Mata temple and offered her to drop at Chittorgarh, which she accepted, accompanying him on his motorcycle. She further stated that the accused-appellant took her to a cinema in Chittorgarh for a night show from 9:00 PM to midnight, during which he allegedly gave threats. Subsequently, the accused-appellant took her to his Ghumti near the Avri Mata Temple where they both retired for the night. The prosecutrix alleged that, while she was in the Ghumti, the accused-appellant disrobed her and committed rape. She further deposed that she lay calmly, thereafter and later she reported the matter to the concerned Police Station. 3.2. Learned counsel thereafter, has taken this Court to the cross-examination of the prosecutrix wherein she admitted to traveling alone to offer Darshan at Avri Mata, which was 3-4 hours of distance from her village. She also disclosed that after marriage, she had been embroiled in disputes with her husband and was residing with her mother, with the matrimonial discord ongoing. The prosecutrix conceded that she had voluntarily and willingly accompanied the accused-appellant to the cinema, which was a crowded place, and thereafter, travelled with him on his motorcycle to the Avri Mata Temple, which was a distance of about one hour from Chittorgarh. She further deposed that the Ghumti of the accused-appellant was located in an area with open shops, and that he provided her with clothes to wear. The prosecutrix also admitted that following the alleged incident of rape, she remain at the Ghumti consensually for some time. The prosecutrix further noted that despite the presence of police in the vicinity, she reported the incident only upon being prompted to do so. 3.3. Learned counsel has also taken this Court to the testimony of PW-1, Dr. Dilip Kumar Sharma, who deposed that no injuries were observed on the body of the prosecutrix, that she was habituated to sexual intercourse, and that there were no visible signs of rape, as confirmed in his cross-examination. 3.4. Learned counsel further submits that neither the FSL report nor any kind of circumstantial evidence supports the contention of forcible sexual intercourse. Dilip Kumar Sharma, who deposed that no injuries were observed on the body of the prosecutrix, that she was habituated to sexual intercourse, and that there were no visible signs of rape, as confirmed in his cross-examination. 3.4. Learned counsel further submits that neither the FSL report nor any kind of circumstantial evidence supports the contention of forcible sexual intercourse. With respect to the charge under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, learned counsel contends that the prosecutrix has consistently deposed that she saw the accused-appellant for the first time, when he followed the Bus on his motorcycle and then went with him on his motorcycle, and therefore, there is no question of the appellant being aware of the prosecutrix’s caste particulars. 4. Conversely, learned Public Prosecutor, while opposing the aforesaid submissions advanced on behalf of the accused- appellant, submits that there is a consistency in the report of the prosecutrix. 5. Heard learned counsel for the parties as well as perused the record of the case. 6. This Court observes that as far as the charge under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act is concerned, it is writ large on the facts that the accused-appellant was unaware of the prosecutrix’s caste particulars, and thus, the conviction of the accused-appellant under the aforementioned provision, in the absence of any knowledge of her caste, is unsustainable in the eyes of law. 6.1. This Court further observes that the learned Trial Court duly recorded the statement of the prosecutrix and was conscious of the fact that the prosecutrix voluntarily travelled from Avri Mata to Chittorgarh, a journey of about one hour by motorcycle, in the company of the accused-appellant. She further consented to watching a movie with him, frequented public places without protest, and voluntarily accompanied him to his Ghumti, where she remained in his company for some time without raising any alarm or objection. Moreover, the medical report of PW-1, Dr. Dilip Kumar Sharma, does not corroborate the occurrence of rape, further weakening the prosecution’s case. 6.2. This Court also observes that the conviction of the accused- appellant does not induce confidence regarding establishing of the case beyond reasonable doubt for convicting the accused- appellant. Moreover, the medical report of PW-1, Dr. Dilip Kumar Sharma, does not corroborate the occurrence of rape, further weakening the prosecution’s case. 6.2. This Court also observes that the conviction of the accused- appellant does not induce confidence regarding establishing of the case beyond reasonable doubt for convicting the accused- appellant. Though, the testimony of the prosecutrix alone can be sufficient to convict a person if it is credible or cogent, but at the same time, when the prosecutrix herself narrating the manner in which she has voluntarily gone with him on his motorcycle and travelled at public place such as watching a movie at a crowded cinema willingly and also went to his Ghumti and then continued to stay with him for some time does not give sufficient strength to her deposition so as to establish the case to the realm of proof beyond reasonable doubt. The testimonies of PW-3 Dilip Kumar, PW-4 Madan Puri and PW-5 Vinod, are of no consequence because they turned hostile. Apart from that, PW-6 Narayan Singh and PW- 7 Ishwar Lal, who were the witnesses to the site plan, also turned hostile. 6.3. This Court also takes note of the fact that PW-11 Shankar Lal and PW-12 Sher Mohammed, in their depositions, confirmed the sealed delivery of materials to the FSL Unit, but at the same time, the FSL report has not been received. Additionally, PW-14 Ramdas @ Ratandas, a witness to the seizure of the motorcycle, also turned hostile. The sexual compatibility report of the accused- appellant as provided by PW-10 Dr. Ramswaroop Meena, fails to establish any connection between the accused-appellant and the alleged crime. The statement rendered by PW-1 Dr. Dilip Kumar Sharma, while confirming the age of the prosecutrix, notes the absence of visible signs of rape, injury or any indication of a recently torn hymen and there was no such report, which could point out a rape to be indicated by the statement of the doctor. The other witnesses, who support the circumstances, also do not induce any confidence. Since, the matter came up before the learned Trial Court only for conviction on the sole testimony of PW-2 and in the given circumstances and the factual matrix, this Court concludes that the prosecution has miserably failed to prove the case beyond reasonable doubt. 6.4. The other witnesses, who support the circumstances, also do not induce any confidence. Since, the matter came up before the learned Trial Court only for conviction on the sole testimony of PW-2 and in the given circumstances and the factual matrix, this Court concludes that the prosecution has miserably failed to prove the case beyond reasonable doubt. 6.4. This Court is conscious of the judicial pronouncement of the Hon’ble Supreme Court in the case of Pankaj Singh v. State of Haryana (Criminal Appeal No.1753/2023) decided on 21.03.2024, whereby the Hon'ble Apex Court reiterated that the condition precedent for invoking the presumption under Section 114A of the Indian Evidence Act in cases involving rape is the proof of sexual intercourse. In the instant case, the said condition has not been fulfilled in light of the evidence on the record. The decision affirms the fundamental principle of criminal law that the accused is presumed to be innocent until proven guilty, with the prosecution bearing the burden of establishing guilt beyond reasonable doubt. 6.5. Thus, this Court observes that solely on the basis of the testimony of the prosecutrix against the accused-appellants, the burden and liability of the crime in question cannot be fastened upon the accused. Furthermore, the absence of other material evidence which could remotely be taken against the accused- appellant, further strengthens the case of the accused-appellant. 6.6. This Court further observes that when the judgment of conviction is challenged before the Appellate Court, a proper appreciation of the evidence recorded by the learned Trial Court has to be made. The power of the Appellate Court is provided under Section 386 (b) of Cr.P.C ., which reads as under:- “ 386. Powers of the Appellate Court .— (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.” 6.7. This Court also observes that as provided under Section 386 (b)(i) Cr.P.C ., the Appellate Court has the power to reverse the findings of the conviction, so as to acquit the accused. This Court also observes that as provided under Section 386 (b)(i) Cr.P.C ., the Appellate Court has the power to reverse the findings of the conviction, so as to acquit the accused. At this juncture, it is considered appropriate to reproduce the relevant portion of the judgment rendered by the Hon'ble Apex Court in case of Kamlesh Prabhudas Tanna v. State of Gujarat , (2013) 15 SCC 263 , as hereunder:- "9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P [ (2000) 1 SCC 621 : 2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2) "2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court." (emphasis supplied) 10. In Rama v. State of Rajasthan [ (2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4) "4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law." 11. In Iqbal Abdul Samiya Malek v. State of Gujarat [ (2012) 11 SCC 312 : (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [ (2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court. 12. Recently, a three-Judge Bench in Majjal v. State of Haryana [ (2013) 6 SCC 798 ] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter." 6.8. In view of the aforementioned precedential backdrop, this Court observes that in the present case, the sexual compatibility report has not established any connection between the accused- appellant and the alleged crime. Moreover, the recovery witness to the seizure of the motorcycle has also turned hostile. In view of the aforementioned precedential backdrop, this Court observes that in the present case, the sexual compatibility report has not established any connection between the accused- appellant and the alleged crime. Moreover, the recovery witness to the seizure of the motorcycle has also turned hostile. Therefore, in the presence of the such lacunae, the prosecution failed to prove its case against the accused-appellant beyond all reasonable doubts, which in the present case, are insufficient in themselves to complete the chain of circumstantial evidence, and thus, it would be appropriate to reverse the findings of conviction against the accused- appellant, as recorded by the learned Trial Court in the impugned judgment. 6.9. This Court also observes that looking into the overall factual matrix and the circumstances of the case as well as the evidence and the precedent law, as placed before us, it is a fit case to exercise the power conferred under Section 386(2), which pertains to the reversal of a finding from conviction to acquittal. 7. Accordingly, the present appeal is allowed and the impugned judgment of conviction and order of sentence dated 10.08.1999 passed by the learned Special Judge, SC/ST Cases, Pratapgarh in Special Sessions Case No.57/98 is quashed and set aside. The accused-appellant is acquitted of the charges against him. Accused-appellant Farooq is already on bail in pursuance of the order dated 14.01.2000 passed by a Coordinate Bench of this Hon’ble Court in the instant appeal; he need not surrender in connection with the present case; his bail bonds stand discharged. 7.1. However, keeping in view the provisions of Section 437-A Cr.P.C ./481 B.N.S.S., the accused-appellant is hereby directed to furnish a personal bond in the sum of Rs.25,000/- and a surety bond each in the like amount before the learned Trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the accused-appellant shall appear before the Hon’ble Supreme Court, as and when called upon to do so. 7.2. All pending applications stand disposed of. The record of the learned Trial Court be returned forthwith.