HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 593 / 2014
Amin Khan, son of Sumar Khan by caste Musalman, resident of
Gunga, Police Station Shiv, District Barmer.
(At present lodged in Central Jail, Jodhpur)
—-Appellant
Versus
The State of Rajasthan.
—-Respondent
Connected With
S.B. Criminal Appeal No. 463 / 2014
1. Luna Khan S/o Mohd. Khan, by caste Muslim, R/o Madhe Ki
Dhani, P.S. Shiv, District Barmer.
2. Gazi Khan S/o Ali Khan, by caste Muslim, R/o Shiv, P.S. Shiv,
district Barmer.
3. Badami Devi @ Pawani W/o Channa Ram, by caste Gawariya,
R/o Shiv, P.S. Shiv, district Barmer.
(Presently lodged at sub-Jail, Balotra).
—-Appellant
Versus
State of Rajasthan.
—-Respondent
__
For Appellant(s) : Mr. Mahesh Bora, Sr. Advocate with Mr. Arun
Kumar, Mr. Suresh Kumbhat, Mr. Sanjay
Mathur, Mr. Sheetal Kumbhat, Advocates.
For Respondent(s) : Mr. O.P. Rathi, PP.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment:- _13/09/2017
These two appeals against conviction are directed against
the judgment dated 29.05.2014 passed by the learned Sessions
Judge, Balotra in Sessions Case No.18/2013. By the impugned
judgment, the learned trial Judge, acquitted all the accused from
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the charges under Section 5(G) read with Section 6 and 17 of the
Prevention of Children from Sexual Offences Act (hereinafter
referred to as the ‘POCSO Act’); the charge under the SC/ST Act
and the accused Babu Singh and Hukam Singh from the charges
under Section 212 IPC and the accused Badami Devi @ Pawani
from the charge under Section 366A IPC.
The appellants herein were convicted and sentenced as
follows:
Name of Conviction for the Sentence
Accused offence
Badami Devi Section 366 IPC 5 years’ R.I. and fine of
@ Pawani Rs.5,000/- in default of
payment of fine to further
undergo 6 months’
imprisonment
Section 376/109 10 years’ R.I. and fine of
IPC Rs.5,000/- in default of
payment of payment of fine to
further undergo 6 months’
imprisonment
Section 376/120B 10 years’ R.I. and fine of
Rs.5,000/- in default of
payment of payment of fine to
further undergo 6 months’
imprisonment
Gazi Khan Section 376(2)(G) 10 years R.I. and fine of
and Luna IPC Rs.5,000/- each in default of
Khan payment of fine each was
directed to further undergo 6
months imprisonment
Amin Khan 120B IPC 10 years R.I. and fine of
Rs.5,000/- in default of
payment of fine to further
undergo 6 months
imprisonment
The sentences awarded to the accused for the different
offences were directed to run concurrently.
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Succinctly stated, facts essential and relevant for disposal of
the instant appeal are noted hereinbelow:
Ummeda Ram, the complainant lodged a written report at
the Police Station Shiv on 25.01.2013 alleging inter alia that his
minor daughter Kumari ‘P’ (hereinafter referred to as the ‘victim’)
had gone to Shiv on 23.01.2013 for purchasing some household
articles. She returned on 24.01.2013 and divulged that when she
had gone to Shiv for purchasing the household and grocery
articles, Badami Devi @ Pawani and Durga, fraudulently took her
to Pawani’s dhani for staying overnight. In the night at 11 O
‘Clock’, the victim was made to accompany Pawani for attending
the call of nature. Under this pretext, she was taken away from
the dhani to a place where Luna Khan and Gazi Khan were
waiting. These accused, caught hold of the victim and subjected
her to forcible sexual assault. She shouted on which, Durga
Gawarni came there and took her back to Pawani’s dhani. She was
kept in the dhani for the entire night. In the morning, Pawani and
Durga gave her milk cake (mawa) to eat and implored her not to
disclose the incident to anybody. Pawani brought the vitim to her
shop at Shiv in the next morning. When the girl did not return
home in the night, her brother Bhura Ram and uncle Lalaram
came down to Shiv looking for her and brought the girl back
home. On returning, she told her mother of this incident. Her
father Ummeda Ram was called and he filed the report with the
above allegations on the basis whereof, an FIR No.14/2013 was
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registered at the Police Station Shiv for the offences under Section
376 (2)(G) IPC, Section 3(ii)(v) of the SC/ST Act and Sections
5(G) read with Section 6 of the POCSO Act. Upon conclusion of
investigation, the investigating officer filed a charge-sheet against
the accused Luna Khan and Gazi Khan for the offences under
Section 376(2)(G) IPC, Section 3(ii)(v) of the SC/ST Act and
Section 5(G) read with Sections 6 of the POCSO Act, against the
accused Amin Khan for the offence under Section 376(2)(G) read
with Section 120B IPC and Section 3(i)(xii) and 3(ii)(v) of the
SC/ST Act and Section 6 read with Section 17 of the POCSO Act,
against the accused Badami @ Pawani for the offence under
Section 366, 366A, 376(2)(G) read with Section 109 and 120B IPC
and Section 6 read with Section 17 of the POCSO Act and against
the accused Babu Singh and Hukam Singh for the offence under
Section 212 IPC.
The trial court framed charges against the accused persons
in these very terms. They pleaded not guilty and claimed trial. The
prosecution examined as many as 21 witnesses in support of its
case. The accused, upon being examined under Section 313
Cr.P.C., denied the prosecution allegations and claimed that they
had been falsely implicated. One witness Salakh Khan was
examined in defence. The trial court, upon concluding trial, held
that the prosecutrix was above 18 years of age on the date of the
alleged offence and thus acquitted the accused persons from the
charge under the POCSO Act. It was further held that the offence
was not perpetrated with the objective/intent of sexually
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assaulting a person belonging to SC/ST community and thus, the
accused were acquitted from the charge under Section 3 of the
SC/ST Act. However, finding the evidence of the prosecutrix and
other prosecution witnesses to be reliable regarding the alleged
sexual assault, the learned trial court proceeded to convict and
sentence the accused as stated above. Hence these appeals.
Sarva Shri Mahesh Bora, Sr. Advocate assisted by Shri Arun
Kumar; Shri Suresh Kumbhat alongwith Shri Sheetal Kumbhat,
and Shri Sanjay Mathur, Advocates representing the appellants
vehemently urged that the entire case of prosecution is false and
fabricated. The testimony of the victim is totally unreliable,
unbelievable and full of infirmities, contradictions and
improbabilities. They contended that statements of the
prosecution witnesses are full of improbabilities, infirmities and
contradictions. They urged that the prosecutrix admitted in her
cross-examination that she did not know the accused persons
from before and yet the names of the accused with complete
details are mentioned therein which renders the entire story false.
Drawing the Court’s attention to the written report (Ex.P/4),
learned defence counsel urged that specification of complete
details viz. names, father’s name and place of residence of the
accused persons in the written report, when admittedly the victim
did not know the accused from before brings the entire
prosecution case under a cloud of doubt. It was further submitted
that the first informant Ummeda Ram categorically stated in his
evidence that the report was scribed by the SHO and he was not
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aware of its contents and thus the FIR is tainted. They further
urged that there is a significant and grave contradiction in the
sequence of events as narrated in the FIR vis-a-vis the statement
of the victim regarding the manner in which the incident allegedly
happened. They submitted that whilst in the FIR (Ex.P/4), there
was no allegation that the victim was forced on to a pick-up
vehicle and subjected to rape therein but when she was examined
in court, she alleged that the accused Gazi Khan and Luna Khan
pulled her into the storage section of the pick-up vehicle. Pawani
and Amin Khan kept sitting on the front seat and Luna khan and
Gazi Khan subjected her to forcible sexual assault in the rear
section of the vehicle. They urged that the rear storage section of
the pick-up vehicle was made of metallic sheet and thus, it is
impossible to believe that the victim would have escaped unhurt
without a scratch on her body had she been subjected to gang
rape by two adult males. Drawing the Court’s attention to the
statement of Dr. Rita Bhatiya, the Medical Jurist who conducted
medical examination of the victim, learned defence counsel urged
that the doctor categorically admitted that she did not notice any
injury whatsoever on the person of the victim suggestive of her
having been subjected to rape. Rather, the medical officer clearly
stated that the victim appeared to be habituated to sexual
intercourse and no opinion could be given regarding recent sexual
assault having been committed upon her. They pointed out that
the victim, upon being examined in the court, categorically stated
that the alleged act of sexual assault committed upon her was the
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first instance of her being sexually penetrated and that it had
never happened earlier. She further stated that she tried to resist
the sexual assault by punches, kicks, etc. During the incident, her
clothes got torn. Because of the forcible penetration, she started
bleeding from her genitals. The accused inflicted bite marks on her
chest, ears and other parts of body and she showed these marks
to the doctor during medical examination. The learned defence
counsel urged that all these allegations are falsified by the medical
testimony which totally rules out the remotest possibility of the
victim having been subjected to penetrative sexual assault
because no marks of violence were observed on her body upon
medical examination carried out on 28.01.2013 i.e. shortly after
the alleged assault.
It was further contended that the name of appellant Amin
Khan is not mentioned in the written report and as such, the his
introduction as the driver of the vehicle is a pure improvement
and should be discarded outright. They further urged that the
unnatural conduct of the victim after the alleged incident makes
her entire testimony doubtful. She stated that after the alleged act
of forcible rape by two persons, she got down from the vehicle and
Pawani took her back to her dhani. She went to sleep without a
bother. In the next morning, she had food at the house of Pawani
and went back to the village Shiv at 12 O ‘Clock’. Her brother
Bhura and uncle Lalaram met her at Shiv but she did not disclose
the incident to them and casually returned back to her father’s
house late in the evening. They urged that had there been an iota
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of truth in the victim’s allegation that Pawani was instrumental in
getting her raped then, after returning from the dhani, she would
not have casually sat at Pawani’s shop at the village Shiv which is
a thickly populated area and instead would have raised a hue and
cry or at least, could have made an attempt to return to her
village. Learned counsel Shri Bora urged that there is a great deal
of doubt in the story of the prosecutrix that she actually went to
the shop of Pawani for purchasing household articles/ grocery. He
submits that the girl stated that she was not carrying any money
with her and rather had taken 10 Kgs. Gwar with herself which
she sold at Khatri’s shop and then went to Pawani’s shop. Shri
Bora urged that the girl must have been familiar with the owner of
the shop where she sold the Gwar. That being the situation, had
she been subjected to rape with the connivance of Pawani, no
sooner she was brought back to Shiv, her immediate natural
reaction would have been to approach the owner of the shop
where she sold the Gwar and complain about the incident or to at
least seek refuge at some place other than Pawani’s shop. He thus
urged that the entire story of the victim is false and fabricated.
Learned counsel thus implored the Court to set aside the
impugned judgment and prayed for acquittal of the appellants.
Per contra, learned Public Prosecutor vehemently opposed
the submissions advanced by the appellant’s counsel and urged
that the minor victim had no cause or occasion to falsely implicate
the appellants for serious charges of conspiracy and gang-rape. By
initiating the prosecution, undeniably she put her own reputation
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in the society at stake. He urged that minor contradictions
appearing in the statement of the prosecutrix, rather than creating
doubts make her statement all the more reliable because
contradictions are bound to appear in deposition of a truthful
witness. He further contended that no significance can be attached
to the circumstance that the victim kept waiting at the shop of
Pawani after the incident rather than making an effort of returning
to her village because she had been misled by Pawani into
believing that the next bus going to her village would be leaving at
6 O ‘Clock’ in the evening. Thus, the victim had nowhere else to
go and kept waiting. No sooner her brother and uncle came to
Shiv, she accompanied them and returned to her village. He
further urged that the absence of injuries on the body and private
parts of the victim is immaterial and would not discredit her
testimony because the medical examination was conducted after
significant delay. With these submissions, he craved rejection of
the appeals.
I have given my thoughtful consideration to the arguments
advanced by the learned counsel for the appellants and learned
Public Prosecutor and have gone through the impugned judgment
and the record.
The prosecution claimed that the victim is a minor at the
time of the offence but the trial court did not accept this assertion
and held that she was above 18 years of age at the time of the
incident. Normally, contradictions appearing in evidence of a gang-
rape victim cannot discredit her entire testimony but in such a
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situation, her evidence has to be appreciated keeping in mind the
general safeguards governing appreciation of evidence in criminal
cases. The victim, who resided with her father at the village
Pushad, claims to have gone to the village Shiv for purchasing
some household articles on 23.01.2013. It is virtually an admitted
case of the prosecution that the accused Luna Khan, Gazi Khan
and Amin Khan were not known to the girl from before. Despite
that, Luna Khan and Gazi Khan were named as the raists in the
written report (Ex.P/4). An explanation was offered by the girl
during her evidence that the co-accused Pawani was mentioning
names of these persons and that is why, she became aware of
their identity. Ex-facie the said explanation is farfetched and
unacceptable on the face of record. In natural course of events,
when a group of familiar persons converse with each, no one
would address the other with the father’s name and address. The
significant fact that the victim did not know names of the accused
from before and yet their names; father’s names and addresses
are mentioned in the FIR, makes the prosecution case doubtful.
The accused Amin Khan is not even named in the FIR and thus
apparently, subsequent introduction of his name as driver of the
offending vehicle is ex-facie an afterthought and the prosecution
case as against the said accused has to be discarded at the
outset.
As per the prosecution evidence, the victim had gone to
village Shiv on 23.01.2013 for buying some household articles.
She started from her village in the morning at 8 O ‘Clock’ and
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reached Shiv at 9 O ‘Clock’. She stated that upon her approaching
Pawani, she was told that the goods which she required would be
arriving from Jodhpur at about 12 O ‘Clock’ and that she would
have to wait. Hence, she got delayed and, the last bus going to
her village departed. As a result, she was left with no means of
returning to her village on that day. She unhesitatingly
accompanied Pawani to her dhani which was at a little distance
from Shiv. She took food with Pawani and then went to sleep with
one Durga. During the night, the alleged incident as narrated
above happened. She further alleged that Amin Khan was also
present with the two principal accused who subjected her to rape
and he and Pawani threatened her not to divulge the incident to
anybody. After the victim had allegedly been ravished, Pawani
took her back to her Dhani where she went to sleep without a
bother as if nothing had happened. In the next morning, she took
food at Pawani’s house and reached Shiv at about 12 O ‘Clock’.
There Bhura Ram and Lalaram met her and she accompanied
them back to her village and disclosed the happenings to her
mother and brother. Her father was called and then the report was
lodged. Upon being cross-examined, she stated that it was her
third or fourth visit to Shiv. She did not divulge the incident to her
brother at Shiv and only spoke out after returning to her village.
She categorically stated that the act of sexual assault perpetrated
by the accused upon her was the first time she had been
penetrated sexually. During this incident, she offered serious
resistance to the accused and received number of injuries. She
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had come to Shiv for purchasing bangles, etc. which costed her
Rs.300/-.
It is beyond belief that for purchasing bangles and grocery
items, etc. costing barely Rs.300/-, the girl would be required to
spend hours together at the village Shiv and could not catch the
last bus to her village which departed as late as 6.00 PM. She
categorically stated that she left her house at about 8 O ‘Clock’ in
the morning, reached Shiv at 9 O ‘Clock’, purchased the goods
worth Rs.300/- and then stayed back at Pawani’s shop till the
night. There was apparently, no reason for the girl to have stayed
on at Shiv after her shopping spree had ended. Natural conduct
required that she should have boarded the last bus to her village
rather than loitering arrival at Pawani’s shop. This unnatural
behavior makes her testimony doubtful.
Regarding identity of the accused and the injuries received
by her in the incident, she stated:
“ftu vknfe;ksa ds vkus dh ckr dg jgh gw¡] iouh
uke crk jgh Fkh] blfy;s eSa crk jgh gw¡A eSa igys ls muds
uke ugha tkurh gw¡A esjk muls ckr djus dk igys dke
ugha iM+kA geus tks iqfyl esa fjiksVZ izn’kZ ih 4 is’k dh]
oks fjiksVZ eqs i+dj ugha lqukbZ FkhA blfy;s eSa ugha crk
ldrh dh fjiksVZ esa D;k fy[kk gSA vxj esjh fjiksVZ esa pkj
vknfe;ksa ds uke fy[ks gSa rks xyr gS] eSaus rhu vkneh
ns[ks FksA iouh dks igys ls tkuus dh ckr eSaus iqfyl
okyksa dks eftLVªsV lkgc dks crk nh Fkh] exj D;ksa ugha
fy[kh] irk ughaA iqfyl c;ku izn’kZ Mh 1 esa iouh }kjk
lqcg ;g dguk fd lkeku ugha vk;k gqvk gS] vkSj lkeku
tks/kiqj ls vk;sxk] ;g ckr eSaus iqfyl dks crk nh Fkh] D;ksa
ugha fy[kh] irk ughaA iouh }kjk Qksu pktZ esa yxkus dh
ckr iqfyl dks crk nh Fkh] D;ksa ugha fy[kh] irk ughaA eSaus
iqfyl okyksa dks MªkbZoj dk uke crk fn;k Fkk] D;ksa ugha
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[ CRLA-593/2014]fy[kk] eqs irk ughaA izn’kZ Mh 1 dk Hkkx , ls ch eSaus
ugha fy[kk;k FkkA ;g ckr lgh gS fd izn’kZ Mh 1 c;ku o
eftLVªsV c;ku izn’kZ ih 1 esa eqyfteku dks igys ls
tkuus dh ckr ugha fy[kh gqbZ gS] eSasus rks iqfyl o
eftLVªsV lkgc dks crk nh FkhA ;g ckr lgh gS fd ?kVuk
ds le; f[kprku ds le; esjs diM+s QV x;s Fks] vkSj esjs
lkFk xyr dke djus ls esjs xqIrkax ls [kwu vk;k Fkk] tks
esjs diM+ksa ij yxk FkkA eSaus oks [kwu yxs o QVs diM+s
iqfyl dks crk;s FksA exj iqfyl okyksa us dsoy pM~Mh yh
Fkh] QVs o [kwu vkyqnk diM+s ugha fy;s FksA”
In further cross-examination, she admitted that when her
uncle and her brother met her at Shiv on 24.01.2013, they did not
make any enquiry from her nor did she tell them of the incident.
She categorically admitted at page 7 of her cross-examination
that she did not know the father’s names of the accused and was
at a loss to explain how these names appeared in the written
report. She further admitted that the investigating officer did not
get the identification of the accused done at her instance. A
question was put to her by the court regarding the contradiction
about the identity of the accused because at one point of time,
she stated that she knew the accused and later on in cross-
examination, she stated that she did not know their names from
before the incident and Pawani had disclosed the names. In reply
to this question, she stated that the accused used to come to their
village for purchasing goats and that is why she knew them. In
the very next question put to her by the defence, she stated that
she did not know the names of the accused. However, this
material admission was totally ignored by the trial court while
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appreciating the victim’s evidence. PW-5 Bhura brother of the
victim, stated that when his sister did not return on the same day
from Shiv, they became worried and thus, he and his uncle
Lalaram, went to village Shiv. They met the victim at the cabin of
Pawani at 3 O ‘Clock in the afternoon of 24.01.2013. He admitted
that the prosecutrix had never met the accused persons before
the incident. The first informant Ummeda Ram (PW-7) being the
father of the prosecutrix was cross-examined by the defence in
reference to the FIR and he categorically stated that the report
was scribed by the SHO and that it was not read over to him. The
witness feigned ignorance regarding the alleged incident. These
circumstances cast a serious doubt on the prosecution case
regarding the identity of the accused and give an indication that
the FIR might have been sponsored by someone with oblique
motives.
There is yet another very significant contradiction in the
statement of the victim in context to the written report which was
admittedly drafted after she disclosed the entire sequence of
events to her father. The victim herself is a signatory to the
report. In the written report (Ex.P/4), there is no such assertion
that the accused Luna Khan and Gazi Khan, bodily lifted her on to
a pick-up vehicle and then subjected her to rape. While deposing
under Section 161 Cr.P.C. and in her sworn testimony, the
prosecutrix alleged that the accused bodily lifted and placed her in
the rear side storage section of the vehicle and gang-raped her
therein. True it is that absence of injuries on the persons of a
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gang-rape victim cannot compulsively be considered as creating
doubt on her testimony if it is otherwise reliable. However, such
circumstance is definitely relevant while appreciating evidence of
the witness. In the case at hand, the prosecutrix emphatically
stated that when she was subjected to forcible gang-rape by the
two accused appellants, she got numerous abrasions, scratches,
etc. on her body and that the accused persons also inflicted bite
marks on her body and she started bleeding from her genitals
after the alleged rape. The medical officer Dr. Rita Bhatiya (PW-
10), who conducted medical examination of the victim, clearly
stated that she did not find any injury, bite marks, etc. either on
the private parts or anywhere else on the victim’s body. Evidently
thus, the story set up by the prosecutrix that she was subjected to
gang rape associated with physical violence in the rear storage
section of the pick-up vehicle made of metal sheets and that she
received large number of injuries in the process is ex-facie false.
Total absence of injuries on her person despite a specific allegation
being made that such injuries were caused creates serious doubt
and dents in her sworn testimony. As has been observed above,
seeking corroboration of the evidence of the victim in case of rape
is not a sine-qua-non but when, seriously doubtful circumstances
are noticed in her evidence, seeking corroboration is advisable.
The present one is definitely a case where, the victim’s evidence
cannot be accepted without corroboration. Apparently, the victim’s
testimony is not corroborated but is rather contradicted totally by
the medical evidence and other circumstances manifested from
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the record. A specific suggestion was given by the defence to the
material prosecution witness that a sum of Rs.15,00,000/- was
demanded from the accused persons and a false case was foisted
because the demand was not met.
The inherent omissions, contradictions and infirmities
appearing in evidence which make the entire prosecution case
doubtful can be summarised as below:-
(1) mentioning of the names of the accused Luna Khan and Gazi
Khan, their father’s names, their place of residence in the FIR
despite the admitted position that the prosecutrix was not
knowing them from before.
(2) omission of the significant fact in the FIR that the accused
subjected the victim to rape in the rear storage section of a
pick-up vehicle.
(3) total absence of marks of violence/injury on the person of the
prosecutrix even though she claimed to have received large
number of injuries when the two principal accused subjected her
to gang rape.
(4) total lack of marks of violence on the victim’s genitals even
though she claimed that it was the first incident of sexual assault
upon her and that too by two adult males.
(5) highly unnatural conduct of the victim after the incident and
on the next day viz. staying back at Pawani’s shop even after
returning from her dhani even though she had been allegedly
raped by Pawani’s active connivance and in not disclosing the
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incident to her brother Bhura Ram whom she met at Pawani’s shop
on 24.01.2013 between 12.00 to 03.00 pm.
On going through the trial court’s judgment, it is apparent
that the reasoning given therein for accepting the evidence of the
prosecution regarding identity of the accused is flimsy and
unconvincing. The trial court relied on the lame explanation given
by the victim in answer to a court question that the accused used
to visit her village for purchasing goats, etc. and that Pawani also
spoke out their names and thus, held that there was no need of
holding test identification of the accused. The said finding is
apparently perverse and appears to have been recorded by
overlooking the specific admission appearing in the cross-
examination of the prosecutrix when she admitted that she had
never met the accused earlier. As a matter of fact, the Presiding
Officer virtually solicited the explanation by putting the particular
court question. The victim categorically stated that only three
persons were present at the time of the incident and resiled from
the allegation set out in the FIR wherein, four persons were
named including Durga (who was not charge-sheeted). She was
confronted with her previous police statement (Ex.D/1) and the
statement recorded under Section 164 Cr.P.C. (Ex.P/1). In both
these statements, there is a material omission of the fact that the
accused were known to the girl from before. The girl categorically
admitted in her cross-examination that she did not know the
father’s names of the accused and could not explain as to how
these details and the residential address of the accused was
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recorded in the FIR. The trial court placed much weight on the fact
that the prosecutrix stated in her cross-examination that she knew
the accused because they used to come to her village for
purchasing goats. However, the categoric admission appearing in
the further cross-examination by the defence after the court
question that she only knew the accused from their faces and did
not know their names from before, was conveniently overlooked
by the trial court.
There is yet another significant contradiction in the sworn
testimony of the prosecutrix vis-a-vis her statement recorded
under Section 164 Cr.P.C.. Whilst in the sworn testimony, the
prosecutrix alleged that after the incident, she went to sleep at
the house of Pawani and then came to village Shiv at about 12 O
‘Clock’ where her brother Bhura Ram and uncle Lalaram met her.
Thereafter, she went back to her home with them. On the other
hand, in the statement recorded under Section 164 Cr.P.C.
(Ex.P/1), she categorically stated that on the next morning,
Pawani dropped her off at her home. This is far too significant to a
contradiction so as to be ignored.
In view of these significant anomalies, contradictions and
infirmities emanating from the prosecution case, a strong doubt is
created in the Court’s mind that the accused appellants might
have been falsely implicated in this case for oblique motives and
that the incident as alleged never happened. The involvement of
the local M.L.A. Jalam Singh for entangling the accused in this
case was projected by way of defence theory on behalf of the
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accused. Specific suggestions to this effect were given to the first
informant Ummeda Ram and the victim herself. The victim
admitted in her cross-examination that she knew Jalam Singh, Ex.
M.L..A. from before and that he was present at the Barmer
Hospital when she was medically examined. The trial court
attached much significance to the FSL report in which, an opinion
was given that the victim’s underwear upon being sent for
chemical examination tested positive for presence of semen
stains. However, the seized underwear was not got identified by
the victim in her testimony. Thus, no importance can be attached
to the FSL report.
In view of the above discussion, this Court is of the firm
opinion that the prosecution failed to lead reliable and trustworthy
evidence to bring home the charges against the accused
appellants beyond all manner of doubt; rather it appears to be a
case of false implication.
As a consequence, the conviction of the appellants as
recorded by the trial court for the abovementioned offences
cannot be sustained. The appeals deserve to be and are hereby
allowed. The impugned judgment dated 29.05.2014 passed by the
learned Sessions Judge, Balotra in Sessions Case No.18/2013
whereby, the appellants were convicted and sentenced in the
above terms is set aside. The accused are acquitted of the
charges. The appellants Amin Khan and Badami Devi @ Pawani
are on bail. They need not surrender. Their bail and bonds are
discharged. The accused appellants Luna Khan and Gazi Khan are
(20 of 20)
[ CRLA-593/2014]
in custody. They shall be released forthwith if not wanted in any
other case.
A copy of this order be placed in each file.
Record be returned to the court below.
(SANDEEP MEHTA)J.
tikam daiya/