Jakir Hussain S/o Mohammad Hussain vs The State of Rajasthan

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.

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.

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 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 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 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 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 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.