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Rafiq Khan vs The State Of M.P. on 20 August, 2018

1
Cri.A.No.1706/1997

HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT JABALPUR
1 Case Number Criminal appeal no.1706/1997
2 Parties Name Rafiq Khan vs. State of Madhya Pradesh
3 Date of Judgment 20/08./2018
4 Bench Constituted of Hon. Shri Justice J.P. Gupta
5 Judgment delivered by Hon. Shri Justice J.P. Gupta
6 Whether approved for re- YES
porting
7 Name of the counsel for Shri Manish Datt, learned Senior Advocate with
the parties Shri Rahul Sharma for the appellant.
Shri Vivek Lakhera, learned Govt. Advocate for
the respondent / State.
8 Law Laid down Signifi- I) The evidence of a prosecution witness can-
cant paragraphs number not be rejected in toto merely because the
no.14 prosecution chose to treat him as hostile and
cross examined him. The evidence of such wit-
ness cannot be treated as effaced or washed
off the record altogether but the same can be
accepted to the extent his version is found to
be dependable on a careful scrutiny thereof.
ii) Witnesses supported the prosecution story
at the stage of examination-in-chief. There-
after, cross examination was deferred and the
same was conducted after nearabout five
months, wherein they turned hostile and
claimed that statements given earlier were
wrong; while other material and circumstances
available on record corroborate earlier version
of the witnesses. The trial court has not com-
mitted any error in relying upon the statements
of witnesses given in the examination-in-chief,
relying on the judgment of Apex Court in the
case of Khujji @ Surendra Tiwari Vs. State of
M.P. (1991)3 SCC 627.
III) “The finding of human blood on the
weapon and cloth on the accused is material
consideration even in the absence of determi-
nation of blood group. This circumstance
lending corroboration to the direct testimony
of the prosecution witnesses if no explana-
tion on the presence of human blood on the
cloth given by the accused.”

(J.P.Gupta)
Judge
2
Cri.A.No.1706/1997

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P. GUPTA)

Criminal Appeal No. 1706 / 1997

Rafiq Khan
Vs.
State of Madhya Pradesh

Shri Manish Datt, learned Senior Advocate with Shri Rahul Sharma
for the appellant.
Shri Vivek Lakhera, learned Govt. Advocate for the respondent /
State.

JUDGMENT

(Delivered on 20th day of August, 2018)

This criminal appeal has been filed assailing the impugned
judgment dated 12.8.1997 passed by First Additional Sessions Judge, Se-
hore Camp Ashta, District Sehore in Session Trial No. 188/96 whereby
the appellant has been convicted under Sections 376 and 342 of the IPC
and sentenced to undergo RI for 10 years along with fine of Rs.5000/-
and RI for 3 months along with fine of Rs.500/-, with default stipulation
as mentioned in the impugned judgment.

2. In brief the relevant facts of the case are that on 29.10.1996
prosecutrix lodged a report in the police station Javar, District Sehore
to the effect that she is the resident of village Kajlas, Police Station
Javar, District Sehore. On 28.10.1996 at 9:30 O’clock in the night she
went for watching T.V. at the house of her maternal uncle Mohd. Khan
and on returning, at about 11.05 O’clock in the night she was pissing
outside of her house, at that time, the appellant / accused, resident of
the same village, came over there and he gagged a white handkerchief
in the mouth of the prosecutrix and took her to a dilapidated house of
one Ambaram and closed the doors by putting a brick. The prosecutrix
3
Cri.A.No.1706/1997

tried to scream and also tried to run away from the hold of the appel –
lant / accused, on which, the appellant / accused threatened her not to
make cry otherwise he would kill her, due to which, the prosecutrix got
afraid. Thereafter, the appellant / accused kissed her cheeks, pressed
her breast and threw her on the ground and after putting off her under –
garments committed sexual intercourse with her. After commission of
rape, the appellant / accused pulled out handkerchief from the mouth
and threatened her not to tell about the incident to anybody otherwise
he would kill her. On hearing cry of the prosecutrix, her brothers Sabir
and Javed reached on the spot and they saw the prosecutrix putting on
cloth and also saw the appellant / accused wearing pant and running
him from the spot. The prosecutrix disclosed the incident to them. On
29.10.1996 at about 1:45 O’clock in the night, the prosecutrix along with
her bothers and maternal uncle lodged the report of the incident
against the appellant / accused at Police Station Javar, District Sehore
which was registered at Crime No.322/96 under Section 376 and 506 of
the IPC. Thereafter, criminal law set in motion. Medical examination of
the prosecutrix was got done and during investigation, medical exami-
nation of the appellant / accused was also got done. Statements of the
witnesses were recorded. After completion of all formalities, charge
sheet for the offence under Sections 376, 342 and 506 of the IPC was
filed before the court concerned, from where, the case was committed
to the Court of Sessions for trial.

3. Appellant / accused abjured the guilt and pleaded inno-
cence and claimed to be tried. In defence no evidence has been ad-
duced.

4. Learned trial Court after completion of trial, convicted and
sentenced the appellant / accused as mentioned above on the basis of
the statement of the prosecutrix and other witnesses.

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Cri.A.No.1706/1997

5. On behalf of the appellant-accused, aforesaid finding of the
conviction has been assailed on the ground that the learned Trial court
has failed to appreciate the evidence properly in the right perspective.
Learned Trial court has relied upon the interested and motivated wit-
nesses. Learned trial court has committed grave error in relying on the
testimony of them. Such contradictory version is not supported by any
reliable or believable evidencing material. The prosecutrix (PW-1) stated
in cross examination that somebody caught hold of her and she was not
a position to identify the said person as he had tied the black colour
cloth on his face. The statements of Javed (PW-3) and Sabir (PW-4) have
specifically admitted that they had not seen the appellant / accused on
the spot and they were not able to identify him. Hence, the appeal be
allowed and the appellant-accused be acquitted.

6. Learned Govt. Advocate appearing for the respondent /
State has argued in support of the impugned judgment and stated that
the finding of conviction and sentence of the learned trial court is in ac-
cordance with law. The commission of rape on the prosecutrix has
been established and that act was committed by the appellant / ac-
cused has also been established by the prosecution. Learned trial court
has not committed any error in relying on the version of the witnesses
supporting the prosecution case in the light of the judgment of the
Apex Court in the case of Khujji @ Surendra Tiwari vs. State of Madhya
Pradesh (1991) 3 SCC 627. Hence, the appeal be dismissed.

7. Having considered the contentions of learned counsel for
the parties and on perusal of the record, it appears that there is no con-
troversy that on the fateful night rape was committed with the pros-
ecutrix. This fact has been proved by the prosecution by the testimony
of the prosecutrix (PW-1) and corroborated by the statements of her
brothers Javed (PW-3) and Sabir (PW-4) who reached on the spot hav-
ing heard cry of the prosecutrix and saw running away the appellant /
5
Cri.A.No.1706/1997

accused from the spot and wearing cloths by the prosecutrix on her
person and narrating the incident to them and also corroborated by the
statement of mother Barkat Bi (PW-2) and maternal uncle Mohammad
Khan (PW-5) to whom the prosecutrix narrated the incident of rape
when she reached the house with her brothers and FIR Ex.P/2 lodged
by the prosecutrix (PW-1) on morning on 29.10.1996 at Police Station
Javar, District Sehore. This fact is further supported by the medical evi-
dence. Dr. R. D. Vaisnav (PW-9) has stated that on 29.10.1996 he exam-
ined the prosecutrix and found marks of biting on the right cheek
caused within 24 hours and prepared MLC report Ex.P/12 and referred
the prosecutrix to a lady Dr. Smt. Malti Arya (PW-10) who has stated
that on 29.10.1996 she examined the prosecutrix and found injury on
right cheek and also found abrasions on neck and right breast; and pri-
vate part was injured and painful and there was bleeding on touching of
it and hymen was torn and ruptured. On her underwear blood stains
were present and some white spots were also there and this witness
categorically opined that the prosecutrix was subjected to sexual as-
sault and rape was committed with her and prepared report Ex.P/13
and also handed over vaginal swab and underwear in a sealed cover for
the chemical examination to the police. FSL report Ex.P/1 has confirmed
the presence of blood and semen on the underwear of the prosecutrix.

8. The aforesaid evidence has remained unimpeachable during
cross examination and the credibility of the aforesaid evidence has also
not been assailed here. Having careful scanning of the aforesaid evi-
dence, in view of this court, there is nothing on record to discard the
aforesaid evidence. Hence, there is no hesitation to hold that on
28.10.1996 the prosecutrix was subjected to sexual intercourse under
fear.

9. Now the question is that whether sexual intercourse with
the prosecutrix was committed by the appellant without her will and
6
Cri.A.No.1706/1997

consent. In this regard, learned trial court has placed reliance on the evi-
dence of the prosecutrix (PW-1) and her brothers Javed (PW-3) and
Sabir (PW-4); her mother Barkat Bi (PW-2) and her maternal uncle Mo-
hammad Khan (PW-5). Prosecutrix (PW-1) has stated that on 28.10.1996
near about 9:30 pm she went for watching T. V. at the house of her ma-
ternal uncle Mohammad Khan (PW-5) and on returning near about 11
pm she was pissing outside of the house, at that time, the appellant-ac-
cused resident of her village came to her and gagged a white handker-
chief in the mouth of the prosecutrix and took her forcefully nearby a
dilapidated house and closed the door and put one brick to stop the
door and when she tried to scream and run away from the hold of the
appellant-accused, he threatened her to kill. She got afraid then the ap-
pellant-accused kissed on her cheek and bit her cheek and pressed her
breast and threw her on the ground and after putting off her under –
wear committed sexual intercourse with her. She was having pain and
there was bleeding from her private part. When she was released by the
appellant-accused, she wiped off her vagina with her underwear and
made cry and on hearing cry, her brothers Javed (PW-3) and Sabir (PW-

4) reached on the spot and saw the prosecutrix putting on clothes on
her person and running away the appellant-accused. She narrated the
incident and name of the appellant-accused to her brothers and then
went to her house where she also told the incident to her mother and
maternal uncle and on the morning she went to lodge the FIR which is
Ex.P/2 and thereafter, she was medically examined and her underwear
was taken.

10. Other witnesses, her brothers Javed (PW-3), Sabir (PW-4),
her mother Barkat Bi (PW-2) and maternal uncle Mohammad Khan (PW-

5) have supported the aforesaid version of the prosecutrix (PW-1).

11. Dr. K. K. Chaturvedi (PW-8) has also stated that on 1.11.1996
he examined the appellant and found him capable to commit sexual in-

7

Cri.A.No.1706/1997

tercourse. On his underwear there were some spots. Samples of his se-
men and underwear were taken and handed over the same to the po-
lice for chemical examination and prepared report Ex.P/8. Constable
Asharam (PW-7) has also stated that a sealed packet of underwear and
sample of sealed semen were received from the hospital and the same
were deposited in the police station Javar where seizure memo Ex.P/7
was prepared. Chatur Singh (PW-11) Head constable has also stated
that on 29.10.1996 he recorded the FIR Ex.P/2 as per narration of the
prosecutrix. Laxmi Prasad Shrivastava (PW-13) has also stated that he
received the aforesaid sealed packet and slide packet in the police sta-
tion Javar from the constable Asharam (PW-7). FSL report Ex.P/1 shows
that on the underwear of the prosecutrix and on the underwear of the
appellant blood stains and human semen were present.

12. The aforesaid evidence points out that appellant commit-
ted sexual intercourse with the prosecutrix forcefully in other words
without her consent and will, but the aforesaid witnesses, Prosecutrix
(PW-1), brothers of the prosecutrix Javed (PW-2), Sabir (PW-3), mother
Barkat Bi (PW-2) and maternal uncle Mohammad Khan (PW-5) have also
given different versions in their cross-examination. Prosecutrix (PW-1)
has stated that she has not identified the person who committed sexual
intercourse forcefully with her as he covered his face with the cloths
and she did not name the appellant about committing sexual inter-
course with her to her brothers, mother and maternal uncle; and the
brothers, the mother and the maternal uncle also in their cross exami-
nation have stated that prosecutrix did not name the appellant / ac-
cused as she had not identified the person who committed sexual inter-
course with her. Thereafter, Public Prosecutor with the permission of
the court after declaring them hostile cross-examined them, in which,
they affirmed that statements given in the cross examination are cor-
rect.

8

Cri.A.No.1706/1997

13. In view of the aforesaid contradictory versions of the wit-
nesses, learned counsel for the appellant contended that when the wit-
nesses have given contradictory statements or inconsistent statements
and they have been declared hostile by the prosecution and on the ba-
sis of the aforesaid testimony, the appellant cannot be held guilty for
commission of rape and the learned trial court has committed grave er-
ror.

14. On perusal of the findings of the learned trial court it is
found that learned trial court has considered the judgment of the Apex
Court passed in the case of Khujji @ Surendra Tiwari (Supra) which is
an identical case. In this regard, the paragraphs no. 7 and 10 are rele-
vant. The relevant observation of para no. 6 is as under :-

6. “The evidence of a prosecution witness cannot
be rejected in toto merely because the prosecution
chose to treat him as hostile and cross examined him.
The evidence of such witness cannot be treated as ef-
faced or washed off the record altogether but the
same can be accepted to the extent his version is
found to be dependable on a careful scrutiny thereof.

In the present case the presence of the eye-witnesses
in the company of the deceased at the place of occur-
rence could not be doubted. One of the witnesses was
injured in the incident. Immediately after the incident
within less than an hour, before there was any extra-
neous intervention he went to the police station, nar-

rated the incident and lodged the FIR. Since the FIR
was a detailed document it is not possible to believe
that the investigating officer imagined those details
and prepared the document. The detailed narration
9
Cri.A.No.1706/1997

about the incident in the FIR goes to show that the
subsequent attempt of the witness to disown the doc-
ument while admitting his signature thereon, is a shift.
The only area where the witnesses had not supported
the prosecution and resiled from their earlier state-
ments is regarding the identity of the assailants. The
evidence of the eye-witnesses was challenged by the
prosecution in cross-examination because they re-
fused to name the accused as the assailants of the de-
ceased. The trial court made no effort to scrutinize the
evidence of these two witnesses even in regard to the
factum of the incident.”

Paragraph no. 7 is as under :-

7. “That brings us to the evidence of PW 1 Komal
Chand. Komal Chand’s evidence was not accepted by
the trial court on the ground that he was not a natural
witness and was only a chance witness. PW 1 explained
his presence by stating that he had gone to the market
to purchase vegetables and while he was returning
therefrom on foot with his cycle in hand he heard a
commotion and saw the incident from a short dis-
tance. Being a resident of Suji Mohalla, the place of oc-
currence was clearly in the vicinity thereof and, there-
fore, his presence at the market place could not be
considered to be unnatural. It is not unnatural for
working people to purchase vegetables at that hour
and, therefore, his explanation regarding his presence
cannot be ruled out as false. The sketch map prepared
by PW 11 Gaiser Prasad shows that he had seen the in-
cident from a short distance of hardly 22 feet although
10
Cri.A.No.1706/1997

PW 1 says he saw it from the square. Since the incident
occurred at a public place with a lamp-post nearby, the
possibility of his having identified the assailants could
not be ruled out. The examination-in-chief of this wit-
ness was recorded on November 16, 1976 when he
identified all the assailants by name. He stated that he
knew the six accused persons in court and they were
the persons who had surrounded the rickshaw and
launched an assault on PW 4 and the deceased Gulab.
Of them Gopal struck PW 4 with a chain. He also stated
that the appellant Khujji and his companions Gudda
and Parsu were armed with knives and when Khujji
tried to assault PW 4 with a knife, Gopal shouted Khujji
that man is not Gulab”. There- upon Khujji and his com-
panions ran after the Gulab, overtook him and the ap-
pellant, Parsu and Gudda assaulted Gulab with their
weapons. Gudda struck Gulab from the front on his
chest, Parsu stabbed him on the side of the stomach
while Ram Kishan and Gopal held him and the appel-
lant attacked him from behind with a knife whereupon
Gulab staggered shouting ‘save-save’ and fell in front
of the house of Advocate Chintaman Sahu. Thereafter
all the six persons ran away. His cross examination
commenced on 15th December, 1978. In his cross-ex-
amination he stated that the appellant Khujji and
Gudda had their backs towards him and hence he
could not see their faces while he could identify the re-
maining four persons. He stated that he had inferred
that the other two persons were the appellant and
Gudda. On the basis of this statement Mr.Lalit submit-
ted that the evidence regarding the identity of the ap-

11

Cri.A.No.1706/1997

pellant is rendered highly doubtful and it would be
hazardous to convict the appellant solely on the basis
of identification by such a wavering witness. The High
Court came to the conclusion and, in our opinion
rightly, that during the one month period that elapsed
since the recording of his examination-in-chief some-
thing transpired which made him shift his evidence on
the question of identity to help the appellant. We are
satisfied on a reading of his entire evidence that his
statement in cross-examination on the question of
identity of the appellant and his companion is a clear
attempt to wriggle out of what he had stated earlier in
his examination-in-chief.

Since the incident occurred at a public place, it is rea-
son- able to infer that the street lights illuminated the
place sufficiently to enable this witness to identify the
assail- ants. We have, therefore, no hesitation in con-
cluding that he had ample opportunity to identify the
assailants of Gulab, his presence at the scene of occur-
rence is not unnatural nor his statement that he had
come to purchase vegetables unacceptable: We do not
find any material contradictions in his evidence to
doubt his testimony. He is a totally independent wit-
ness who had no cause to give false evidence against
the appellant and his companions. We are, therefore,
not impressed by the reasons which weighed that the
trial court for rejecting his evidence. We agree with the
High Court that his evidence is acceptable regarding
the time, place and manner of the incident as well as
the identity of the assailants.”

12

Cri.A.No.1706/1997

The relevant observation of para 10 is as under :-

10. “The finding of human blood on the weapon
and cloth on the accused is material consideration
even in the absence of determination of blood group.
This circumstance lending corroboration to the direct
testimony of the prosecution witnesses if no explana-
tion on the presence of human blood on the cloth
given by the accused.”

15. Thus, in the aforesaid case it is held that the evidence of
the prosecution witnesses cannot be rejected merely because of the
prosecution chose to treat them as hostile and cross examined them.
The evidence of such witnesses can be accepted to the extent their ver-
sions are found to be dependable on a careful scrutiny thereof.

16. In the present case, chief-examination of the aforesaid wit-
nesses have been recorded on 13.2.1997, in which, they have supported
the prosecution version and identified the appellant as culprit but their
cross-examinations were deferred and it was recorded on 10.7.1997 af-
ter near about 5 months of the incident in which the witnesses denied
the fact about the identity of the appellant as culprit and thereafter
they were declared hostile on the point of identification of the appel-
lant by the prosecution. The circumstance of this case is identical with
the aforesaid judgment of Khujji @ Surendra Tiwari (Supra). The ver-
sion given in the chief examination is supported by the FIR Ex.P/2 and
also supported by the FSL report Ex.P/1 and the medical evidence. In
such circumstances, learned trial Court has not committed any error to
come to the conclusion that the appellant was the person who commit-
ted forceful sexual intercourse with the prosecutrix and the contention
of learned counsel for the appellant has no substance.

13

Cri.A.No.1706/1997

17. In view of the aforesaid discussions, it is considered view of
this Court that the prosecution has succeeded to prove the offence pun-
ishable under Sections 376 and 342 of the IPC against the appellant be-
yond reasonable doubt. Hence, this appeal is dismissed. The finding of
conviction and sentence awarded by the trial court is hereby affirmed.
The appellant is on bail. His bail bonds stand cancelled. He is directed to
surrender forth with before the trial court and the trial Court shall send
him to jail for serving out remaining part of his jail sentence in accor-
dance with law.

A copy of this order be sent to the trial court and the jail au-
thorities concerned for information and necessary action.

(J.P.GUPTA)
JUDGE

JP/-

Digitally signed by JITENDRA
KUMAR PAROUHA
Date: 2018.08.23 17:42:59
+05’30’
14
Cri.A.No.1706/1997

JP/–

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