Mohammed Safique @ Iqbal vs State on 21 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Criminal Appeal No. 170 / 1990

Mohammed Safique @ Iqbal s/o Shri Kabir Ahmed, by Caste
Musalman, r/o Gold Nadi, Jodhpur.

—-Appellant
Versus
The State of Rajasthan.

—-Respondent
__
For Appellant(s) : Mr. Manoj Pareek.

For Respondent(s) : Mr. L.R. Upadhyaya, P.P.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA

Judgment

Date of Judgment:_21/08/2017

By way of this appeal, the appellant herein seeks to

challenge the judgment dated 31.05.1990 passed by the learned

Sessions Judge, Jodhpur convicting and sentencing as follows:

Under Section 376 IPC- 7 years R.I. and a fine of Rs.50/-
in default of payment of fine to further undergo 1 month’s
R.I.

Under Section 328 IPC- 3 years R.I. and a fine of Rs.50/-
in default of payment of fine to further undergo 1 month’s
R.I.

Under Section 509 IPC- 6 months’ R.I.

All the sentences were directed to run concurrently.

(2 of 10)
[CRLA-170/1990]

Facts in brief are that one Champa Lal submitted a complaint

to the Superintendent of Police, Jodhpur on 31.10.1987. It was

alleged in the complaint that he was living with his wife and four

children at the village Chokha. Dr. Iqbal, who ran a clinic in

Cheerghar, used to visit their village for treatment of the villagers.

The complainant alleged that he had gone out about six months

ago when his wife suffered high fever. Dr. Iqbal was called to his

house and gave some injection to his wife under the pretext of

treating her fever and thereby, she became unconscious. While

she was unconscious, Dr. Iqbal allegedly ravished the lady. When

she regained senses, she noticed that her clothes were in a

disheveled condition and her private parts were stained with

semen. Her petticoat was also stained by semen like spots. She

became crest fallen and enquired from Dr. Iqbal as to the cause of

her condition. He threatened that her nude snaps had been taken

by him in the Camera he was carrying and would be made public

in case she divulged the incident to anyone. His wife became

terrified because of the threats given by Dr. Iqbal and did not

disclose the incident to the complainant. Thereafter, Dr. Iqbal used

to frequent the complainant’s house in his absence and indulged in

forcible sexual relations with his wife under the threat of revealing

her obscene pictures. On 12.10.1987, his wife was going to her

maternal home and was waiting for a bus at Soorsagar. At that

time, Dr. Iqbal came on a motorcycle and tried to take her away.

In the meantime, the city-bus arrived and she escaped by

boarding it. Being fed up by her continued sexual exploitation, his

wife revealed the entire set of events to Champalal who went to
(3 of 10)
[CRLA-170/1990]

the clinic of Dr. Iqbal and tried to dissuade him from continuing his

immoral acts but he too was threatened with dire consequence.

The complainant became mentally disturbed because of these

happenings and both, he and his wife, were led to the brink of

suicide. It was further alleged that earlier also, the doctor had

indulged in similar immoral acts with other women in the village

on which, the public had thrashed him. On the basis of this report,

an FIR was registered at the Police Station Pratap Nagar for the

offences under Sections 376, 328 and 509 IPC and investigation

commenced. After investigation, a charge-sheet was filed against

the appellant for the offences mentioned above. The case was

committed to the Court of Sessions Judge, Jodhpur where charges

were framed against the appellant who pleaded not guilty and

claimed trial. The prosecution examined 12 witnesses in support of

its case. The accused, in his statement recorded under Section

313 Cr.P.C., denied the prosecution allegations and claimed that he

had been falsely implicated in the case. However, he did not lead

any evidence in defence. The learned trial court, upon conclusion

of trial, convicted and sentenced the appellant in the above

mentioned terms. Hence, this appeal.

The gist of testimony of four material prosecution witnesses

PW-2 Devaram, PW-5 Hemaram, PW-7 prosecutrix Smt. ‘Y’ and

PW-9 Champalal (the first informant) is noted hereinbelow for the

sake of ready reference:

PW-2 Devaram is the real brother of first informant

Champalal. He stated that Champalal assaulted his wife (the

prosecutrix). On inquiry, Champalal disclosed that Dr. Iqbal had
(4 of 10)
[CRLA-170/1990]

indulged in immoral activity with the woman and that he had

taken her indecent snaps as well. On this, the witness advised

Champalal that his wife was not at fault and should not be

assaulted. In cross-examination, the witness admitted that the

house of Champalal and his house are adjacent and if anybody

raises a hue and cry from the Champalal’s house, sound would

easily carry to his house. He also stated that Champalal was

having three children his eldest son was aged about 13 years and

the youngest daughter was about 5 years old. He further admitted

that his wife and Champalal’s wife regularly went together for

farming activity. The indecent obscene photographs were

demanded from the accused who refused to part with them.

The witness Hemaram is the nephew of Champalal. He

stated that Champalal’s wife fell ill and requested him to summon

Dr. Safique for her treatment. He approached Dr. Safique and

requested him to visit Champalal’s house. On the next day, he met

his aunt and asked whether the doctor had visited or not. On

12.10.1987, he saw a quarrel taking place between his aunt and

his uncle on which, he made an inquiry. His aunt complained that

Dr. Iqbal had indulged in immoral acts with her. On further inquiry,

she admitted that she did not complain of these incidents to

anybody. On the next day, the doctor was called to their house.

His uncle confronted the doctor with these allegations but he

bluntly denied the same. His aunt gave lathi blows to the doctor

who thereafter confessed his guilt. The doctor also offered that the

complainant may use his wife for sexual acts by way of revenge.

The most important and material witness of prosecution is
(5 of 10)
[CRLA-170/1990]

none other than the prosecutrix (PW-7) Smt. ‘Y’. She was 30 years

old at the time of incident and was having three children the

eldest being 13 years of age. She alleged that she called the

appellant to visit her house for treating her fever. The appellant

came to her house in the afternoon, checked her pulse and then

gave her some tablets to bring down the fever and also injected

her with some medicine. After this, she lost consciousness and

taking advantage of her condition, the doctor ravished her

sexually. When she regained senses, she noticed that her clothes

were in a disheveled condition and the doctor was sitting nearby.

She confronted the doctor with these circumstances on which, he

admitted that he had established physical relations with her and

had taken her pictures in compromising condition by the camera

which he was carrying. She was threatened that in case, she

disclosed about the incident to anybody, her indecent photographs

would be made public and she was threatened that she would be

killed by administering a poisonous injection. A month later, the

doctor again came to her house and demanded to have

intercourse. She tried to raise a hue and cry on which the accused

again threatened her with the disclosure of her indecent

photographs. About one and half month later, the doctor again

came to her house and tried to force her into having sexual

relations. When she threatened that she would shout, the accused

returned. When she was going to her maternal house during

Navratra and was standing at Masooria, the doctor came on a

motorcycle and asked her to accompany him and indulge in sexual

activity. She escaped by boarding the city-bus and went to her
(6 of 10)
[CRLA-170/1990]

father’s house. On the next day, she came back to her village and

found her husband present at the house. She became highly

perturbed by the events and disclosed the same to her husband

who assaulted her. Thereafter, doctor was called and was

confronted with his misdeeds but he denied any such happening.

In cross examination, the witness admitted that she was familiar

with the appellant right from her marriage. Before the incident,

she used to go to the town for getting herself treated by the

appellant. The First incident of rape occurred during first home

visit of the appellant. After the act, she washed her clothes which

had been stained with semen. The accused showed her the

photographs on the third occasion. Her husband was the first

person in whom she confided regarding the alleged incident of her

sexual exploitation. She did not tell of these incidents to anybody

at her father’s house.

The first informant (PW-9) Champalal, more or less, gave

evidence in consonance with the allegations set out in the FIR.

The trial court, upon conclusion of trial, proceeded to rely

upon the evidence of the prosecutrix and the first informant and

finding the case to be proved beyond all manner of doubt,

convicted and sentenced the appellant as above by the impugned

judgment dated 31.05.1990. Being aggrieved, the appellant has

preferred the instant appeal.

Shri Manoj Pareek, learned counsel representing the

appellant vehemently urged that the evidence of the prosecutrix is

highly vacillating doubtful and unbelievable. The FIR was lodged

after significant delay. The prosecutrix kept silent regarding her
(7 of 10)
[CRLA-170/1990]

alleged sexual exploitation by the accused and did not reveal the

alleged happenings to either her husband or her maternal

relatives despite having numerous opportunities to do so. With

these contentions, learned counsel urged that the appellant

deserves to be acquitted of the charges.

Per contra, learned Public Prosecutor vehemently opposed

the submissions advanced by the appellant’s counsel and urged

that the prosecutrix is a rustic villager. There was no occasion for

her to falsely implicate the accused for the heinous offence of rape

while putting her own reputation in the society at stake. He thus

craved for rejection of the appeal and prayed that impugned

judgment be upheld.

I have given my thoughtful consideration to the arguments

advanced by the learned counsel representing the appellant the

learned Public Prosecutor and have gone through the impugned

judgment and have appreciated the entire evidence and the

record.

The FIR was lodged after significant delay of six months. The

prosecutrix claims to have kept silent on the pretext that the

accused had snapped her indecent pictures but the said exercise

appears to be totally cooked because neither any such pictures

nor the camera allegedly used to snap them was recovered during

investigation. The lady admitted in her cross-examination that the

accused showed her the pictures during the third visit. In this

background, when indecent pictures were not even shown to the

lady, there was no occasion for her to believe the threat given by

the accused during the second act of sexual indulgence if at all,
(8 of 10)
[CRLA-170/1990]

she had been ravished against her desire. The prosecutrix alleged

in her testimony that the accused showed her a camera just after

the first incident and threatened her that he had snapped her

indecent photographs therein. However significantly, this

allegation is missing from the highly belated FIR (Ex.P/6) which

was lodged after nearly six months of the alleged incident of rape.

This amounts to a material omission. The accused had been called

from Jodhpur to treat the prosecutrix at her village. He had no

means of knowing that the prosecutrix would be all alone in the

house and thus he would get a chance to assault her sexually or

take her pictures. Thus, there was no occasion for the accused to

have carried a camera with himself. The narration made by the

prosecutrix regarding the manner in which the incident happened

is in itself doubtful. The prosecutrix claims to suffering from a high

grade fever of such intensity that Hema Ram nephew of the first

informant had to be sent to bring the doctor from Jodhpur for her

treatment. Had her condition been so critical, it is unbelievable

that none of her matrimonial relatives viz. Hema Ram or Deva

Ram (brother of Chmpalal who lives in the adjoining house) or

Deva Ram’s wife would stay by the side of the prosecutrix to

attend her and would leave her all alone with the doctor. The chain

of events narrated by the prosecutrix in her evidence is totally

against normal human conduct. The Doctor is alleged to have

stayed back in the home of the prosecutrix for hours together

while she was unconscious. Thus, her children also must have

noticed something unusual and would have raised an alarm if any

untoward incident had happened. Further, there is yet another
(9 of 10)
[CRLA-170/1990]

significant circumstance which makes the entire prosecution story

doubtful. The prosecutrix alleged that after the first incident of

rape, the accused approached her on no less than three occasions

and repeatedly tried to force her into establishing sexual relations.

He even showed the indecent photographs to the prosecutrix on

the third occasion. Nonetheless, despite all these alleged attempts

of made by the appellant for indulging into sexual intercourse

under the grave threat, the prosecutrix did not pertinently state

that accused succeeded in establishing sexual relations with her

after the first incident. Had there been an iota of truth in the

prosecution case that the accused was having indecent

photographs of the prosecutrix who allegedly felt threatened by

these pictures then, nothing could prevent the accused from

forcing the prosecutrix into establishing sexual relations if he so

desired. In these circumstances, this Court is of the view that the

statement of the prosecutrix that the accused threatened her and

subjected her to forcible sexual relations against her desire does

not inspire confidence. In all probabilities, the relations between

the prosecutrix and the accused, if any, were consensual. When

the beans were spilt out in the open, the husband of the

prosecutrix assaulted her. The assault was seen by the brother of

the first informant who intervened and called the appellant to their

house. If at all, there was any truth in the allegation that the

accused had subjected the prosecutrix to forcible sexual

intercourse then, there was no occasion for the complainant to

have called the accused to his house and rather, the matter should

have been taken to the police immediately. It is alleged in the FIR
(10 of 10)
[CRLA-170/1990]

that even after the first incident, the accused used to visit the

house of the complainant in his absence and tried to pressurize

the prosecutrix into having sexual intercourse repeatedly. The

frequent clandestine visits of the accused at the house of the

complainant even after the first incident is yet another

circumstance which goes to indicate that the visits were in all

probability on invitation sent by the prosecutrix.

As a consequence, I am of the view that the evidence of the

prosecutrix is not trustworthy and cannot be relied upon for

holding the appellant guilty of the offence under Section 376 IPC.

Neither the indecent photographs of the prosecutrix nor the

camera used to take the pictures was recovered during

investigation and thus, the charge under Section 384 IPC is also

unsustainable. Likewise, the charge under Section 509 IPC can

also not be sustained because the Court has already held that the

relations between the prosecutrix and the appellant were

consensual.

In view of the above discussion, the appeal merits

acceptance and the conviction and sentences awarded to the

appellant by the trial court deserve to be set aside. As an upshot,

the appeal succeeds; the judgment dated 31.05.1990 passed by

the learned Sessions Judge, Jodhpur in Sessions Case No.37/1988

is set aside and the appellant is acquitted of all the charges. He is

on bail. He need not surrender. His bail bonds are discharged.

Record be sent back forthwith.

(SANDEEP MEHTA)J.

Tikam Daiya.

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