Luna Khan & Ors vs State on 13 September, 2017

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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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/

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