HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 1870/2017

Shahabuddin S/o Kareema Musalman, R/o Semla Ka Badiya Jhak
Ps Beawar Sadar, District Ajmer. (Presently Confined In Central
Jail, Ajmer).
—-Appellant
Versus
State Of Rajasthan Through Pp.
—-Respondent

For Appellant(s) : Mr. Jai Prakash Gupta
For Respondent(s) : Mr. B.N. Sandu,AAG/Public Prosecutor

HON’BLE THE CHIEF JUSTICE

Judgment

16/02/2018

1. Heard learned counsel for the parties.

2. Criminal law was set into motion when on 13.9.2016

Gajendra PW-3, brother of the prosecutrix went to Police Station

Beawar City and made a statement that his sister(the prosecutrix)

was missing since 10.00 AM on 11.9.2016. FIR Exhibit P-8 was

registered.

3. The prosecutrix was recovered from Kochi in the State

of Kerala on 20.9.2016. Produced before the Judicial First Class

Magistrate Kalamassery her statement Exhibit P-1 was recorded

under Section 164 Cr.P.C. in which she disclosed her age as 18

years. The statement reads:- “I live in Bellad Road Beawar City. I

came to Kerala by bus from Beawar City. I came with Sahabuddin.

It is 8 days since we came here we stayed at the factory called
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Toms Pipes at Kalamassery Industrial Area. I don’t have any

complaint against Saddik or Sahabuddin.”

4. The prosecutrix was medically examined and the MLC

Exhibit P-2 dated 22.9.2016 records the opinion that there are no

signs of recent forceful sexual assault and that the prosecutrix was

habitual of sexual intercourse.

5. Custody of the prosecutrix being handed over to her

father, her statement under Section 161 Cr.P.C. was recorded in

which she alleged rape committed upon her by the appellant and

one Saddik. Offence punishable under Section 366, 376(2)(n) and

376-D IPC were added in the FIR. Saddik being a juvenile was

sent to the Juvenile Court for trial where he has been acquitted.

6. Vide impugned judgment dated 8.9.2017 the appellant

has been acquitted for the offence of gang rape but has been

convicted for the offence punishable under Section 366 IPC and

376(2) (n). For the former he has been sentenced to undergo R.I.

for 7 years and the latter for 10 years.

7. The impugned judgment of conviction is influenced by

the fact that in her testimony, appearing as PW-1, deposing on

19.5.2017 the prosecutrix stated that the appellant had forceful

sex against her without her consent, notwithstanding that during

cross-examination on 26.5.2017 the prosecutrix admitted that she

had sex with the appellant with consent. The reason given by the

learned trial Judge is the possibility of the prosecutrix being

intimidated and suborned between the dates when she deposed by

way of examination-in-chief and when she was cross-examined.

The learned trial Judge has also been influenced by the fact that
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the Additional Public Prosecutor had filed an application in the

Court bringing to the notice of the Court that the prosecutrix told

the APP that the appellant was threatening her by his stern looks

directed towards her.

8. The entire incriminating evidence flows from the

testimony of the prosecutrix. In her testimony the prosecutrix

stated on oath that she knew the appellant from before. On

11.9.2016 the appellant contacted her over the phone and

requested her to accompany him to Jodhpur where they would

marry. She left the house. Outside her house the appellant picked

her up on a motorcycle and drove till bus stand Beawar. Saddik

and Mumtaj met them and all four boarded a bus for Jodhpur.

When they sat in the bus the appellant gave her a bottle of Limca;

upon drinking which she became unconscious. From Jodhpur they

took her to Candy Kalamassery (In Kerala). They stayed there for

three days. For three days the appellant and Saddik had sex with

her against her consent. The appellant made her wear a burka and

said that she should tell her name to the people as Mamuna.

When she was recovered her statement Exhibit P-1 was recorded

before the Magistrate. She was medically examined and the report

is Exhibit P-2.

9. On being cross-examined on 26.5.2017 she stated that

sexual intercourse between the appellant and her was with

consent.

10. Notwithstanding admission made by her during cross

examination, reason given by the learned trial Judge to hold

against the appellant which has already been noted by me
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hereinabove, the conviction has been returned.

11. The question which arises for consideration is: whether

the learned trial Judge has overlooked certain critical features of

the evidence.

12. What strikes on the face of the evidence is the learned

trial Judge overlooking the statement Exhibit P-1 made by the

prosecutrix at the first instance under Section 164 Cr.P.C. Its

contents have been noted by me hereinabove. In the statement

she does not say that from Beawar she was taken to Jodhpur and

therefrom to the State of Kerala. She has stated before the

Magistrate that from Beawar she accompanied the appellant

willingly to the State of Kerala and that she had no grievance

against the appellant. Not a word has she spoken of any form of

forceful or illegal confinement, much less sex against her consent.

13. The learned trial Judge has also overlooked the critical

feature of the deposition of the prosecutrix. She starts off her

version by admitting knowing the appellant since long. She stated

that she voluntarily accompanied the appellant to Jodhpur to get

married. It is apparently a case where the prosecutrix knew the

appellant and left in the company of the appellant willingly to get

married. No doubt, in her examination-in-chief she did say on oath

that the appellant and Saddik had sex with her against her

consent. But that statement has to be seen in light of her previous

statements, her subsequent admissions made and in particular

what she said before the Magistrate at the first instance when

examined under Section 164 Cr.P.C. The MLC of the prosecutrix

also shows that she was habituated to sex and surely this could
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not be the result if she was subjected to sex only on three nights

which she claims in her examination-in-chief.

14. In view of the aforesaid facts it cannot be said that the

appellant is guilty of having committed an offence punishable

under Section 366 IPC or Section 376(2)(n) IPC. If not more, the

appellant would certainly be entitled to the benefit of doubt in

view of the fact that at the first instance the prosecutrix in her

statement under Section 164 Cr.P.C. absolved the appellant of any

rape. She stated that she voluntarily left her house in the

company of the appellant.

15. The appeal is allowed. Impugned judgment dated

08.09.2017 convicting the appellant is set aside. The appellant is

acquitted of the charges framed against him. The sentences

imposed upon the appellant are quashed.

16. In view of above, I order that the appellant be released

forthwith, if in custody and not required in any other case.

17. Keeping, however, in view the provisions of Section

437-A of the Code of Criminal Procedure, the appellant is directed

to forthwith furnish a personal bond in the sum of `10,000/-, and

surety bond of the like amount before the trial Court. The bonds

so furnished shall be effective for a period of six months. The

bonds shall contain an undertaking that in the event of filing of

Special Leave Petition against this judgment or on grant of leave,

the appellant on receipt of notice thereof, shall appear before the

Supreme Court.

(PRADEEP NANDRAJOG),CJ

KKC/JKP/43 (court no.6, main list)