Amin Khan @ Aamin Khan vs State on 8 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Criminal Appeal No. 210 / 2011

Amin Khan @ Aamin Khan S/o Sh. Nenu Khan, by caste Moyla,
Mohammedan, Resident of Village Chenda, Police Station Rohit,
Tehsil District Pali (Raj.)

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. Rajesh Choudhary.

For Respondent(s) : Mr. C.S. Ojha, PP.
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

JUDGMENT

Date of Judgment: 08th of August, 2017.

The instant criminal appeal has been filed by appellant- Amin

Khan @ Aamin Khan under Section 374 (2) of Cr.P.C. assailing the

validity of judgment dated 05th of March, 2011 passed by learned

Addl. Sessions Judge (FT) No.2, Pali (for brevity, hereinafter

referred to as „Trial Court‟) in Session Case No.1/2010, arising out

of F.I.R. No.195/2009 of Police Station Rohat, District Pali

whereby the learned trial court convicted the accused appellant for

offence u/s 376 (1) and 306 of IPC and passed following sentence,

which reads as under: –

(2 of 10)
[CRLA-210/2011]

376 (1) of IPC Life imprisonment along with
fine of Rs.5,000/-. In default of
payment of fine to further
undergo six months simple
imprisonment.

306 of IPC Rigorous imprisonment for ten
years, along with fine of
Rs.5,000/-. In default of
payment of fine to further
undergo six months simple
imprisonment.

As per facts of the case, before registration of the FIR

initially a written report (Ex.P/14) was lodged by accused

appellant himself on 15.07.2009 at Police Station- Rohat, in which

he (appellant) gave report to the effect that today in the morning

at 08.30 AM my daughter went for taking water from the water

tank situated in the house, but accidently she fell down in the

water tank and at 9‟O Clock, my younger brother informed me on

mobile that in the house where my wife and daughter were living,

my daughter fell down in the water tank and died. The dead body

of Ms. “A” (deceased) was taken out from the water tank in the

presence of two witnesses, viz. Mohan Singh and Chatura Ram. It

was informed by the accused appellant to the police that he has

no doubt upon any person.

Upon the aforesaid information given by the appellant, the

dead body of the deceased was sent for postmortem and

proceedings under Section 174 Cr.P.C. were initiated. As per

postmortem report, the cause of death was asphyxia due to

drowning. After postmortem, the dead body of deceased was

handed over to the appellant vide Ex.P/9. At the time of incident,

the deceased was 16 years of age.

(3 of 10)
[CRLA-210/2011]

However, later on 25.07.2009 a written report (Ex.P/3) was

filed by the wife of appellant Smt. Jubeda against her husband

(appellant) at Police Station- Rohat, Distt: Pali, upon which FIR

No.195/2009 was registered on 27.07.2009 against the accused

appellant for offence under Section 306 of IPC. In the written

complaint, Smt. Jubeda (PW.3) made following allegations which

reads as under:

“lo
s k eas

Jheku Fkkukf/kdkjh
iqfyl Fkkuk jkfs gV] ftyk ikyh] jktLFkku

fo’k; % cykRdkj dj etcjq gkd
s j vkRek gR;k ds lEcfU/kr eqdnek ntZ
dj grs Aq

ekU;oj th]

uez fuons u gS fd eaS izkFkhZ Jh tqcns k ifRu Jh vkfeu [kka eqlyeku
ekfs gyk] fuoklh xkoa pUs k rglhy jkfs gV] ftyk ikyh eas jgus okyh dh
rjQ ls fuons u gS fnukd a 14@7@2009 dks jkf ds le; djhc 12-01
cts ejs s ifr vkfeu [kka us eqs /kDdk nd s j ejs s yMd
+ h vQlkuk dk gkFk
idM+ dj tcnLrh dejs eas ys x;k mlds lkFk [kkVs k dke fd;k euaS s
dejs dk njoktk [kqyus dh cgrq dkfs “k”k dh yfs du dejs ds vUnj
fpVduh yxh gqbZ Fkh v/kk ?k.Vs ckn vkfeu [kka us njoktk [kky s k yMdh
ejs s ikl jkrs h gqbZ vkbZ vkSj e q s ejs s yMd
+ h vQlkuk us dgk ds ejs s lkFk
diMs+ mrkj dj ejs s lkFk [kkVs k dke fd;k cMh+ eqf”dy ls mldks
lek;k vkjS piq j[kk vkSj nl q js fnu lcq gk 15@7@2009 dks ikuh ds
V kda s eas dnw dj vkRek gR;k dj yh fQj gekjs ?kj ij iqfyl vkbZ vkjS
mldk ikLs VekVZe djok;k ejus ls igys ,d i eas fy[kk Fkk tks i
mldh jkbfVxa dk gS tks bl izdkj ikik eas vkils nq%[kh gkd s j nqfu;k
NkMs + dj tk jgh gaw ikik vki us ejs h ftUnxh cjckn dj nh cki ugha ,d
dl a gS vkils ls dl S s dgaw vki ejs s cki gkAs Fkkuk vf/kdkjh ls gkFk tkMs +
dj fuons u gS fd ejs s ,l s s ifr vkfeu [kka dks fxj¶rkj dj dkuuw h
dk;Zokgh dj l[r ls l[r ltk fnykbZ tkuh pkfg, ,l s s vkneh dks mez
(4 of 10)
[CRLA-210/2011]

dSn dh ltk fnyokbZ tkos vQlkuk us tks i fy[kk Fkk bl fjikVs Z ds
lkFk izfrfyfi ly
a Xu gAS ,l
s s vijk/kh dks rqjUr fxj¶rkj dj dMh+ ls
dMh+ ltk fnykbZ tkoAs
tqcnS k ifRu Jh vkfeu [kka
fuoklh ejs s yMds llqjky teky [kka ds edku eas
jkfgV] ftyk ikyh jktLFkku ek-s ua 9785545736
a 25@7@2009”

fnukd

After registration of FIR, Aslam Khan, (elder brother of

complainant, Smt. Jubeda) submitted a note-book of deceased

“A”, in which following facts were written by her. The said page of

note-book is available on record as (Ex.P/21A), which reads as

under:

” i ki k
eas vkils nq%[kh gkd
s j nqfu;k NkMs + dj tk jgh gaw ikik vki
us ejs h ftUnxh cjckn dj nh cki ugha ,d dl a gS vkils ls dSls dgaw
vki ejs s cki gkAs “

The said document was taken in possession vide Ex.P/5 in

the presence of two witnesses Anwar Khan and Ashique Khan.

After registration of FIR, accused appellant was arrested by the

police vide Ex.P/19 and the hand written note was sent to FSL to

ascertain the handwriting of deceased Ms. “A” and it was reported

by the FSL that said note was written by Ms. “A” herself in her

own handwriting. The following opinion was given by FSL with

respect to said hand written suicide note, which reads thus:

“The blue enclosed disputed writing stamped and
marked as Q1 and the blue enclosed standard writing
stamped and marked as A1 to A15 have been written
by one and the same person.”

As per documentary evidence, the date of birth of Ms. “A”

was 01.03.1991, therefore, on the date of occurrence she was
(5 of 10)
[CRLA-210/2011]

sixteen years of age. It is relevant to mention here that copy of

note-book was produced, in which reason or death was disclosed

by Ms. “A” as well as other document viz. original copy of roll

number issued by the Education Department for appearing in 8 th

class examination were also sent to FSL for determination of

hand-writing. Both these documents were the part of FSL report.

In the investigation, statements of mother of deceased Smt.

Jubeda and brother of deceased, Aslam Khan were recorded by

the investigating officer in which they categorically stated that on

the date of incident appellant, father of deceased, committed rape

with the deceased.

After completion of investigation, charge sheet was filed

against the accused appellant for offence under Section 306 and

376 of IPC in the court of A.C.J.M., Pali from where the case was

committed to the court of Sessions Judge, Pali for trial, but later

on transferred to the court of Addl. Sessions Judge (FT) No.2 Pali,

for trial.

The learned trial court after framing charges under Sections

306 and 376 IPC commenced the trial. In support of prosecution

case, statements of 21 witnesses were recorded and 22

documents were exhibited. After recording the evidence of

prosecution, statements of accused appellant were recorded under

Section 313 Cr.P.C., in which he gave following explanation, which

reads as under:

“ejs h vkSjr o ejs h cPph dh vkil eas ugha curh Fkh rFkk ejs s
lljq ky okykas ,oa ejs h vkSjr ds vkil ugha curh gS ftl dkj.k jfa t”k
py jgh gAS ejs s iq h dks ejs h vkSjr rxa ij”s kku djrs Fk]s ftlls ij”s kku
s j ejs h cPph ejh gSA jfa t”k ds dkj.k Bw k eqdnek fd;k gSA”

gkd
(6 of 10)
[CRLA-210/2011]

In defence, three witnesses were produced before the trial

court and 19 documents were exhibited by the accused appellant.

After recording the entire evidence the learned trial court

heard final arguments and vide judgment dated 05.03.2011

convicted the accused appellant Amin Khan @ Aamin Khan for

offence under Sections 376 (1) 306 of IPC and passed sentence

mentioned above.

At the threshold, learned counsel for the appellant submitted

that appellant is not challenging the incident but it is not rarest of

rare case in which maximum punishment provided for offence

under Section 376 IPC can be imposed. As per learned counsel for

the appellant, it is a case in which the appellant himself reported

the incident to the police and the dead body of his daughter was

taken to hospital by the police in pursuance of information

(Ex.P/14) given by him on 15.07.2009 and after postmortem, the

dead body of the deceased was handed over to him by the police

in the proceedings initiated u/s 174 Cr.P.C. Therefore, the

sentence of life imprisonment awarded to the accused appellant

for offence under Section 376 (1) IPC may kindly be reduced to

ten years‟ R.I. while maintaining the conviction for offence under

Sections 376 and 306 of IPC.

In support of his arguments, learned counsel for the

appellants invited our attention towards the judgment of Hon‟ble

Apex Court in the case of Sunil Dutt Sharma Vs. State (Govt.

of NCT of Delhi) reported in (2014) 4 SCC 375 and in recent

judgment of Hon‟ble Apex Court in the case of State of Himachal

Pradesh Vs. Sanjay Kumar @ Sunny, reported in 2017 Cr.L.J.

(7 of 10)
[CRLA-210/2011]

1443 and recent judgment of this Court in D.B. Criminal Appeal

No.479/2008- Shesha Ram Vs. State of Rajasthan decided on

17.07.2017.

Per contra, learned Public Prosecutor vehemently opposed

the submissions made by the learned counsel for the appellant. It

is submitted that there is no question to reduce the sentence

passed against accused appellant for offence u/s 376 (1) IPC

because it is a case in which the accused appellant, Amin Khan @

Aamin Khan had committed rape with his own minor daughter Ms.

“A”, who on account of such offence committed with her,

committed suicide by jumping into the water tank constructed in

her house. It is further submitted that though there was some

delay in lodging the FIR by the wife of accused appellant against

her own husband, but that delay occasioned due to threat given to

her by the appellant/husband, and she was not in a position to file

complaint to the police immediately after the incident. The

allegations of Smt. Jubeda (PW.3) are very serious and her

testimony cannot be disbelieved because offence was committed

with her minor daughter, who ultimately committed suicide due to

rape committed by her father, accused appellant Amin Khan @

Aamin Khan.

While inviting our attention towards statements of witnesses

viz. PW.4- Anwar (brother-in-law of accused appellant), PW.5-

Aslam (son of appellant and brother of deceased), PW.7- Batun,

PW.9- Sultan Khan, PW.11- Bismillah Khan, PW.12- Neni Bano.

All these witnesses categorically stated on oath in their statements

that on number of occasion, deceased Ms. “A” made complaint
(8 of 10)
[CRLA-210/2011]

against her father Amin Khan with regard to attempt made by him

for committing forcible inter-course and even Smt. Jubeda (PW.3)

reported the whole incident on oath. Therefore, there is no

question to disbelieve the statements of the witnesses so as to

reduce the sentence passed against the accused appellant for

committed offence u/s 376 IPC with his own minor daughter.

With regard to submission made by learned counsel for the

appellant that it is a rarest of rate case, in which maximum

punishment is to be imposed, it is argued by the learned Public

Prosecutor that in the case laws relied upon by learned counsel for

the appellant viz. Sunil Dutt Sharma and State of HP Vs. Sanjay @

Sunny (supra) the offence was not committed by father with his

minor daughter that too in the presence of wife or other family

members. Therefore, upon facts, the judgments relied upon by

learned counsel for the appellants, are not applicable and the

appeal filed by the appellant may kindly be dismissed.

After hearing the learned counsel for the parties, we have

perused the entire evidence and finding arrived at by the learned

trial court. It emerges from the arguments of learned counsel for

the appellant that appellant is not disputing the incident but his

only prayer is to reduce the sentence passed by the trial court for

offence u/s 376 (1) of IPC from life imprisonment to ten years‟ RI.

To consider the aforesaid prayer, we have perused the

statements of PW.3- Smt. Jubeda and PW.5- Aslam. In the

statements not only explanation is given by the witnesses for

delay in registration of FIR but there are serious allegations

against the appellant for committed rape with his own minor
(9 of 10)
[CRLA-210/2011]

daughter and as per testimony of these witnesses, although Smt.

Jubeda made efforts for rescue but she failed to save her daughter

as accused appellant bolted himself along with his daughter and

committed forcible sexual assault qua his own minor daughter. We

have also perused the statement of other witnesses viz. PW.4-

Anwar, PW.5- Aslam, PW.7- Batun, PW.9- Sultan Khan, PW.11-

Bismillah Khan, PW.12- Neni Bano. All these witnesses

categorically said that behaviour of appellant towards his daughter

was so bad which is not only an offence against individual but it is

an offence against the society.

Upon consideration of entire evidence and fact that before

committing suicide the deceased herself wrote a note disclosing

the reason for committing suicide, which was ultimately found to

be proved in the FSL report. The deceased disclosed the reason

for committing suicide which is obviously against the appellant,

father. All circumstances and statements of PW.3- Smt. Jubeda,

loudly speaks that it is a case in which father committed rape with

his own minor daughter.

In our society, parents (father and mother) take care of their

children to best of their ability. A father earns for betterment of

his family and looks after his family and also saves his children

from every difficulty, even at the cost of his life also. But, here in

this case we may observe that it is a case in which a father has

committed a heinous offence of rape with his own minor daughter

and it not only amounts to an offence against the individual but

against the society. The appellant being father himself tarnished

the relationship of father and daughter i.e. a protector becomes
(10 of 10)
[CRLA-210/2011]

predator. Therefore, the prayer of the accused appellant to reduce

the sentence from life imprisonment to ten years sentence

deserves rejection because reducing the sentence will cause

damage to society and relationship of father and daughter.

It is also worthwhile to observe that no wife will made such

type of serious allegations against her own husband and no

daughter will make false allegation against her father and no other

close relative will level such allegation for committing rape by

father with his daughter. It is a glaring example in which not only

wife made allegations against the appellant but deceased

daughter before committed suicide disclosed the reason in writing

for committing suicide due to act of accused appellant.

Therefore, we are not inclined to interfere in the judgment

impugned so as to reduce the sentence because the facts and

circumstances available on record are glaring example of

committing heinous offence in the society.

Consequently, there is no merit in this appeal and the same

is hereby dismissed.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.

DJ/-

41

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