Ali vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

In the instant case, the appellant, namely Ali @ Ali Mohammad was tried by the Court of Additional District and Sessions Judge (Fast Track) No. 4, Bharatpur, Headquarter, Deeg for having committed rape on intervening night of 19th and 20th October, 2009 at around 01:00 A.M. with the prosecutrix {name withheld to protect her identity and herein after to be called as ''the prosecutrix}, aged about twenty-years, who at the relevant time, being pregnant was carrying foetus of about five months.

The trial Court, by its impugned judgment dated 12.10.2010, held the appellant guilty for offences punishable under Sections 457, 323 and 376of Indian Penal Code.

The trial Court, considering the fact that prosecutrix at the relevant time was pregnant and was carrying foetus five-months old and, considering the same as an aggravating circumstances, sentenced the appellant as under:-

"For offence under Section 376 I.P.C.: to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine, to further undergo one year rigorous imprisonment.

For offence under Section 457 I.P.C.: to undergo one year rigorous imprisonment and to pay a fine of Rs. 5,000/-. In default of payment of fine, to further undergo one month rigorous imprisonment.

For offence under Section 323 I.P.C.: to undergo six months rigorous imprisonment and to pay a fine of Rs. 5,000/-. In default of payment of fine, to further undergo one month rigorous imprisonment."

All the sentences were ordered to run concurrently.

The present appeal has been preferred, under Section 374 of the Code of Criminal Procedure, 1973, to assail the judgment of conviction and order of sentence rendered by the Court of Additional District and Sessions Judge (Fast Track) No. 4, Bharatpur, Headquarter, Deeg.

In the present case, Jafruddin S/o Banni Khan (PW-3) had presented a written-report (Exhibit-P/3) before Ramavtar Yadav (PW-11), who was then posted as Station House Officer, Police Station, Sikri.

The written report (Exhibit-P/3), when translated into English reads as under:-

"To,

The Station House Officer, Police Station, Sikri,

Sir,

It is submitted that on 20.10.2009 at about 01:00 A.M. my sister (name withheld to protect her identity) was sleeping on the roof of the house. Ali s/o Ruddar Khan Mev, (present appellant), came on the roof by climbing an electric pole situated near the shop of our neighbour, Swarn Singh and caught hold of my sister. My sister made protest and resisted due to which the bangles of her hands were broken and she had suffered abrasions on hands. Then, Ali had hit her mouth on the roof of the house due to which her mouth from the left side was bruised. Ali committed rape with her. After hearing noise of prosecutrix, I and my brother-in-law (jija) ran after Ali. We caught hold of him near electricity pole, but he after giving beating ran towards his house. Accused left his towel, shirt and mobile (Nokia) along with SIM on the roof. We have taken the same into possession and submit the same along with the report. Legal action be taken. Dated 20.10.2009. Number of mobile''s SIM is 9549839867."

On the basis of above said written-report, a formal First Information Report (Exhibit-P/7) was registered and investigated. A report of investigation along with the accused was sent for the trial, and same were committed to the Court of Sessions and was entrusted for trial to the Additional Sessions Judge, (Fast Track) No. 4, Bharatpur.

The trial Court charged the appellant for offence punishable under Sections 458, 376 and 323 of Indian Penal Code. The appellant pleaded not guilty and claimed trial.

Prosecution commenced its evidence.

Dr. Mukesh Sharma (PW-1) had examined the appellant and stated that there was nothing to suggest that the appellant was not capable of performing sexual intercourse.

Dr. Amrit Lal Jatav (PW-5) on 20.10.2009 at about 04:40 P.M. had medico-legally examined the prosecutrix, aged about twenty-two years.

As per the Medico-Legally Report (Exhibit-P/10), the prosecutrix was married, having one female issue of about five years of age. She was well dressed and was having average built body, and her behaviour was normal. She was having pregnancy of about five months.

The clinical observations, noted in the Medico-Legal Report (Exhibit-P/10) by Dr. Amrit Lal Jatav (PW-5), are as follows:-

"(b) General Examination: (i) Axillary and pubic hairs coarse. Breast slight hanging and hemispherical and Tender. She is pregnant of about 5 months by fundus right per-abdomen.

(ii) Injury - (1) Abrasion 1.5 x 1.0cm on left zygomatic region. Reddish brown - simple blunt.

(2) Linear abrasion 5 in number on medial aspect of lower part of right forearm and one on dorsum 1-2cm length (vertical) - reddish brown - simple blunt.

(3) Linear abrasion 4 in number on medial aspect of lower part of left forearm. Reddish brown 1-1.5 cm long-simple blunt - Duration of all injuries 12-24 hrs.

(C) General Examination - Labia Majora and Minora separated. Vagina dilated. Three fingers and bluish soft. Hymen membrane absent. Posterior commensure absent. Vaginal swab and slide prepared. Uterus grand height about 5 months.

(D) Opinion - She is habitual of intercourse."

This witness had also medico-legally examined Suleman (PW-4), the husband of prosecutrix and as per Medico-Legal Report (Exhibit-P/8), he had found following injuries on his person:-

Abrasion 2.0x1.0 cm transverse on post aspect of right elbow reddish brown.

Abrasion 10x2.cm at upper part of right thigh laterally. Linear abrasion in number 1.0 cm to 2.0 cm transverse, anterilly and 1.5 x 1.0 cm on right knee, reddish brown - simple blunt.

Eight abrasions and ant. Aspect of right leg 2.0 to 8.0 cm vertical reddish brown simple blunt

Linear abrasion seven in number 1.0 cm to 3.0 cm traverse or ant aspect of left chest. Reddish brown - simple blunt."

The prosecutrix herself appeared as P.W.-8 and stated that on 20.10.2009 in the night at about 01:00 A.M. she was sleeping on the roof of her house in her paternal village, Teski. She was staying at her paternal village because she was not having good health. Her husband was also staying with her in the paternal village. Ayurvedic Doctor had prescribed medicine which had to be taken along with the cow milk; since the cow was in her paternal home, she was staying with her parents. She was sleeping on the roof. Her bhabhi along with children was sleeping inside the room at some distance. The accused, after climbing an electric pole situated near the house of neighbour Swaran Singh came on the roof in the night. He gaged her mouth, tore her clothes and had broken string of her ''salwar''. Thereafter, accused committed rape. The accused had gaged her mouth. She was pushing the accused away by the hands and was slapping him. Due to the noise, her brother, Jafruddin and husband, Suleman came on the roof. Her bhabhi also came out of the room. On seeing them, the accused ran away from the roof. Thereafter, her husband followed the accused and caught hold of him. They scuffled with each other. Her husband suffered injury on the hand and feet. Thereafter, Ali ran away from the spot. This witness pointed towards the accused that he was the person, who had committed rape. This witness further stated that she suffered an injury on the left side of face. The accused also took bite on her cheek. Her hand''s bangles were broken. The accused while running from the spot left his towel, shirt and mobile. She along with her husband and brother, Jafruddin came to Police Station, Sikri to lodge the report.

In cross-examination, the prosecutrix stated that she was having pain in stomach. Her stomach ache had started two-&-half months before her coming to her parental village. She was taking medicine for last one month. She further stated that accused had pulled the pant down on his feet. She further stated that accused had removed the pant, after clothes were torn. This witness further stated that she had not suffered any injury on her abdomen, and normal delivery of the child had taken place. Lastly, this witness stated that due to breaking of the string, she suffered jerk, but no damage was caused to foetus, as it was normal delivery.

Jafruddin (PW-3), the complainant reiterated as to what was stated by him in the written-report (Exhibit-P/3) and corroborated the testimony of her sister.

In cross-examination, this witness stated that he had submitted written report in the morning at 08:00/09:00 A.M.

Suleman (PW-4), the husband of prosecutrix, stated that he along with his wife had come to the house of his in-laws, as his wife was suffering from abdomen pain. Ayurvedic Doctor had prescribed medicine, which was to be taken along with the cow milk. Since there was no cow in his house, he along with his wife came to stay at the house of his in-laws. This witness further stated that he along with his brother-in-law was sleeping on the ground floor and her wife was sleeping on the roof. They heard shrieks of prosecutrix and had gone on the roof. At that time, Ali was lying upon his wife and on seeing them, Ali ran away from the spot. Ali has committed offence of rape.

Smt. Jayada, bhabhi of the prosecutrix appeared as P.W.-7. She corroborated the testimony of other witnesses. She stated that after hearing shrieks of her ''nanad'', she had gone on the roof and had seen the accused lying upon prosecutrix.

Patram (PW-2) stated that he had taken sealed samples from the hospital, vide memo Exhibit-P/2 and handed over the same to the Investigating Officer, containing sputum and blood of the accused.

Jagdish Prasad (PW-6) stated that on 05.11.2009 he was posted as Constable at Police Station, Sikri. This witness further stated that the Investigating Officer had taken samples of blood, sputum and semen of the accused into possession, vide memo Exhibit-P/2.

Varida @ Arida, another bhabhi of the prosecutrix appeared as PW-9 and stated that on hearing shrieks of the prosecutrix, she had gone on the roof, at that time the prosecutrix was standing and accused ran away from the spot. This witness was declared hostile by the prosecution.

Sunil Kumar Ojha (PW-10) stated that he was posted as Judicial Magistrate, Deeg and on 31.10.2009 he had recorded statement of the prosecutrix (Exhibit-P/11) under Section 164 Cr.P.C.

Ramavtar Yadav (PW-11), being Investigating Officer proved the receipt of written report (Exhibit-P/3), registration of formal First Information Report, (Exhibit-P/7) and various facet of investigation.

Daudkhan (PW-12) stated in the Court that in his presence, the Police had not arrested the accused. They had obtained his signature on a blank paper. This witness was declared hostile.

To similar effect is the statement of Umar Mohammad (PW-13), as he was also declared hostile by the prosecution.

The statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances were put to him. He denied the same and stated that he had monetary dispute with the brother of the prosecutrix and, therefore, he has been falsely implicated.

In defence, the accused had examined two witnesses.

Jarnail Singh (DW-1) stated that his house is near to the house and shop of Swaran Singh. This witness further stated that there is an electric pole at a distance of two and half feet from the house of Jafruddin (PW-3) and the electric wires are going-on and it is not possible for anybody to go on the roof by climbing the electric pole. Lastly, this witness stated that Jafruddin (PW-3) has been falsely implicated in the present case.

Akhatar Khan (DW-2) stated that from his mobile, he had taken photograph (Exhibit-D/4) and in the photograph, an electric pole is visible.

Mr. S.S. Sunda, the learned counsel appearing for the accused-appellant, has raised twofold arguments before us.

Mr. Sunda, the learned counsel submitted that it has come in the statement of Jafruddin (PW-3) that he had at first submitted written-report to the Police in the morning at 08:00/09:00 A.M. It is further submitted by the learned counsel that so far as written report (Exhibit-P/3) is concerned, the same was submitted at 01:00 P.M., and, therefore, the report submitted in the morning at around 08:00/09:00 A.M. has been withheld from the Court.

Counsel appearing for the accused-appellant has referred to the photograph (Exhibit-D/4) to contend that it is not possible to go on the roof of the prosecutrix by climbing an electric pole and, thus, it is to be assumed that the accused was provided entry to the house and it is a case of consent.

In particular, Mr. Sunda, the learned counsel has further referred to two lines; one emerging in the evidence of prosecutrix and another in the testimony of Jayada (PW-7), the bhabhi of prosecutrix. The prosecutrix (PW-8), in her cross-examination, in the Court stated that whereas Jayada (PW-7), the bhabhi of prosecutrix in cross-examination stated that . Our attention has also been drawn to written report (Exhibit-P/3), wherein it is stated that accused left at spot his shirt, towel and mobile.

Mr. Sunda, the learned counsel contended that the prosecutrix, in her testimony in the Court stated that her clothes were torn and string of the ''salwar'' was broken. It is further submitted by Mr. Sunda, the learned counsel that the Investigating Agency had not taken into possession the clothes or salwar of the prosecutrix and the broken string.

Thus, it is submitted by the learned that it is a case of consent and since the brother and the husband woke up in the night and saw the accused committing sexual intercourse, the prosecutrix out of compulsion has levelled allegation of rape.

At a first instance, the arguments raised by the learned counsel appearing for the accused-appellant, looked attractive, but on careful examination, we find no merit in the same, as admittedly, on the person of the prosecutrix, as per Medico-Legal Report (Exhibit-P/10), three abrasions were present. The abrasion No. 1 was present on zygomatic region and two abrasions were present on the arms. Thus, the abrasions depict the resistance by the prosecutrix.

Counsel appearing for the accused-appellant could not further explain anything regarding the injuries found on the person of prosecutrix, a fact, which cannot be ignored, whereas one or two stray lines, emerging in the testimony of the witnesses, are not sufficient to throw the entire case of the prosecution. Furthermore, the presence of injuries on the person of prosecutrix belie the story of consent.

Thus, we are of the view that the prosecution has succeeded in proving offence of rape so far as the present appellant is concerned.

Having upheld the conviction of the appellant, we are of the view that the sentence of life imprisonment awarded in the facts and circumstances of the case is highly excessive.

It is true that the appellant had committed rape with a lady, who was carrying pregnancy of about five months and had trespassed into her house, but we cannot ignore that the appellant is not a previous convict and was about twenty-five years of age on the day of occurrence.

Furthermore, the appellant is in the corridors of the Court since 2009 and has suffered agony and pain of a protracted trial for more than five years. By balancing aggravating and mitigating circumstances, we are of the view that the ends of justice will be fully met, in case the sentence of life imprisonment awarded upon the appellant is reduced to ten years rigorous imprisonment.

However, we maintain the sentence of fine and default clause, qua offence under Section 376 I.P.C.

We also maintain the sentence awarded upon the appellant on other counts along with the sentence of fine.

With the above modification in the sentence, the present appeal stands disposed of.