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)
