HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 492 / 2014
Jakir Hussain S/o Mohammad Hussain, By caste Muslim, R/o
Behind Masjid, Ward No.25, Rawatbhata, P.S. Rawatbhata, District
Chittorgarh. (At present lodged in Central Jail, Udaipur)

—-Appellant
Versus
The State of Rajasthan

—-Respondent
__
For Appellant : Mr. Kalu Ram Bhati
For Respondent : Mr. O.P. Rathi, Public Prosecutor
__
HON’BLE MR. JUSTICE VIJAY BISHNOI
Judgment
26/04/2017

This criminal appeal under Section 374(2) Cr.P.C. has been

filed on behalf of the appellant being aggrieved with the judgment

dated 13.06.2014 passed by the Special Judge, Scheduled Caste

and Scheduled Tribe Preventions of Atrocities Cases, Chittorgarh

(hereinafter referred to as ‘the trial court’) in Sessions Case

No.22/2012, whereby the trial court while acquitting the appellant

for the offences punishable under Sections 3(2)(V) and 3(i)(xii) of

the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as ‘the Act of 1989’),

has convicted and sentenced him for the offence punishable under

Section 376 IPC as under :

Offence: Sentence awarded:

376 IPC 7 years’ rigorous imprisonment and a fine of

Rs.2,000/- and in default of payment of fine,
further undergo 3 months’ simple imprisonment.

(2 of 8)
[CRLA-492/2014]

At the outset, learned counsel for the appellant has

submitted that he is not challenging the findings of the trial court

regarding conviction of the appellant for the aforesaid offence,

however, prayed that the sentence awarded to the appellant by

the trial court for the aforesaid offence be reduced to the sentence

already undergone by him.

It is contended that the appellant was arrested on

09.12.2011 and since then he is in custody and till date he has

served out about more than 5 years and 4 months’ sentence, out

of the total sentence of 7 years awarded to him by the trial court.

Learned counsel for the appellant has submitted that at the

time of incident the age of the prosecutrix was 30 years and the

age of the appellant was 25 years only and both of them were

known to each other prior to the incident, as they were working as

labours at a construction site. It is contended that there is no

previous criminal record of the appellant and in the jail, his

conduct is also good and, therefore, the sentence awarded to the

appellant by the trial court be reduced to the sentence already

undergone by the appellant.

Per contra, learned Public Prosecutor has opposed the prayer

made on behalf of the appellant for reducing the sentence

awarded by the trial court and argued that since, the appellant

has sexually assaulted the prosecutrix and the prosecution has

sufficiently proved his guilt before the trial court, the sentence

awarded by the trial court is not liable to be reduced.

Heard learned counsel for the parties and carefully

scrutinized the record.

(3 of 8)
[CRLA-492/2014]

Though, the learned counsel for the appellant is not

challenging the findings of the trial court of convicting the accused

appellant, this Court, in the interest of justice, has scrutinized the

record to find out whether the trial court was justified in convicting

the accused appellant for the offence punishable under Section

376 IPC.

On 08.12.2011 at about 06:30 PM, PW-5 prosecutrix lodged

a report (Exhibit-P/8) at Police Station, Rawatbhata, District

Chittorgarh while alleging that on 07.12.2011 at about 06:30 PM,

when she was returning from construction site, where she was

working as labour, and proceedings towards her house at Badoli

then two persons came on motorcycle, out of them she knew one

Jakir. It is further alleged by the prosecutrix that after seeing her,

Jakir alighted from the motorcycle and after threatening her,

forcibly took her away behind the wall of 132 KV powerhouse

situated at Kota Road, where he forcibly raped her. It is also

alleged that Jakir threatened her that if she raise alarm, he would

kill her and after committing rape he further threatened her that if

she would complaint to anybody then he would kill her. It is

further alleged that due to fear she didn’t inform about the

incident to anybody in that night, however, in the next morning

she informed her parents about the same and now filed this

complaint.

On filing the aforesaid complaint (Exhibit-P/8) on

08.12.2011, the Police Station, Rawatbhata, District Chittorgarh

lodged FIR No.340/2011 (Exhibit-P/9) and started investigation.

On 09.12.2011, the police arrested the accused appellant – Jakir
(4 of 8)
[CRLA-492/2014]

and after completion of the investigation, filed charge-sheet

against the accused appellant for the offences punishable under

Sections 3(2)(V) and 3(i)(xii) of the Act of 1989 and Section 376

IPC. The trial court also framed charges against the accused

appellant for the aforesaid offences. The accused appellant denied

the charges and claimed trial.

To prove the charges against the accused appellant, the

prosecution produced as many as 14 witnesses and also exhibited

19 documents. The statements of the accused appellant were

recorded under Section 313 Cr.P.C., however, no one was produced

in defence.

The trial court, after pondering over the prosecution

evidence, convicted the accused appellant for the offence

punishable under Section 376 IPC and sentenced him as referred

herein above, however, acquitted him for the offences punishable

under Sections 3(2)(V) and 3(i)(xii) of the Act of 1989.

PW-5 prosecutirx in her statement in chief has clearly stated

that on 07.12.2011 at about 06:00 PM, when she was returning

from the construction site and proceeding towards village Badoli,

where she was residing with her husband, then the accused

appellant came on motorcycle along with some another person

and after seeing her, the accused appellant alighted from the

motorcycle and caught hold her hand and took her away behind

the powerhouse, where he committed rape upon her. In her cross-

examination she has denied the suggestion put forth by the

defence that as the accused appellant was owing Rs.2,000/- to her

husband and, therefore, she filed this false case against him. She
(5 of 8)
[CRLA-492/2014]

has also denied the suggestion that there was a dispute between

her husband and the accused appellant in relation to money.

Though, she has stated in her cross-examination that during the

course of commission of rape by the appellant, she received

injuries on her back, however, the doctors PW-2 Dr. Arpita Gupta

and PW-13 Dr. Anuradha have not suggested any such injuries on

the body of the prosecutrix.

PW-1 Udaynath, who was the contractor and on whose site

the appellant and the prosecutrix used to work as labout together,

has stated in his statement that the accused appellant and the

prosecutrix used to work as labour on his site and also stated that

on the date of incident, the prosecutrix had alone reported on

work.

PW-3 Rupabai, mother of the prosecutrix, has stated that the

prosecutrix had informed her about the commission of rape by the

accused appellant, though, she has specifically stated that she

didn’t know him.

PW-4 Bhagchand, husband of the prosecutrix, has also

stated in his statement that the prosecutrix had informed him

about the commission of rape by the accused appellant just after

the incident and, therefore, on the next date, he accompanied her

to the police station for lodging FIR.

PW-6 Madhulal, father of the prosecutrix, has also stated

that when his daughter had not returned to home up to late night,

he along with the husband of the prosecutrix had gone for

searching her and they found the prosecutrix on the way near

Powerhouse, where she had informed them about the incident. He
(6 of 8)
[CRLA-492/2014]

has also stated that on the next date he along with the husband of

the prosecutrix had went to police station for lodging FIR.

PW-5 “R”, prosecutrix herself, has also stated in her

statement that after commission of rape by the accused appellant,

when she was returning to her house then her husband and her

father met her in the way while they were searching for her and

then she informed them about the incident.

PW-14 Khushal Singh, Investigating Officer, has stated in his

statement that he inspected the site, where the crime had been

committed, and recovered a clip and a ribbon, belonging to the

prosecutrix, from there.

PW-10 Laxman has stated in his statement that he dropped

the accused appellant on motorcycle on the date of incident at

about 05:00 PM.

Though, there are some contradictions in the statements of

the prosecution witnesses particularly in the statement of

prosecutrix PW-5 but the same are of little significance and the

prosecution has sufficiently proved the fact that on 07.12.2011 at

about 06:30 PM, the accused appellant had committed rape upon

her when she was returning from construction site.

Having carefully scrutinized the record of the case, I am

convinced that the trail court has not committed any illegality in

convicting the accused appellant for the offence punishable under

Section 376 IPC.

So far as the sentence part is concerned, it is to be noticed

that at the time of incident the age of the prosecutrix was 30
(7 of 8)
[CRLA-492/2014]

years whereas the age of the accused appellant was 25 years, as

per the arrest memo and the medical examination report of him

(Exhibit-P/7). It is also not in dispute that the accused appellant

and the prosecutrix were known to each other as they were

working on same construction site. There is no material available

on record to suggest that the appellant had used force or

assaulted the prosecutrix at the time of commission of rape upon

her, as no injury were found on the person of the prosecutrix

during the medical examination. The FIR, in relation to the

incident, had also been lodged after a delay of 24 hours.

In the present case, the appellant is in custody since the

date of his arrest i.e. 09.12.2011 and at present he has served

out about more than 5 years and 4 months’ sentence.

Looking to the peculiar facts and circumstances of the case,

this Court is of the view that the ends of justice would be met if

the sentences of imprisonment of appellant awarded by the trial

court for the offence punishable under Section 376 IPC are

reduced from 7 years’ rigorous imprisonment to the sentence

already undergone by the accused appellant.

Consequently, this appeal is allowed in part. While

maintaining the conviction of appellant – Jakir Hussain S/o

Mohammad Hussain recorded by the trial court for the offence

punishable under Section 376 IPC, his sentence is reduced from 7

years’ rigorous imprisonment to the sentence already undergone

by the accused appellant.

However, the appellant is liable to pay fine amount, as

imposed by the trial court and in default of payment of fine he
(8 of 8)
[CRLA-492/2014]

will further undergo 3 months’ simple imprisonment, as awarded

by the trial court.

On depositing the fine amount or on completion of default

sentence by the accused appellant, in case he fails to pay the fine

amount, the accused appellant be released if he is not required in

any other case.

The impugned judgment dated 13.06.2014 of the trial court

is modified accordingly.

(VIJAY BISHNOI)J.

Abhishek Kumar