Matin Khan S/o Aslam Khan vs State of Rajasthan

In this criminal appeal filed under Section 374 of

Cr.P.C., the accused appellant, Matin Khan, has

challenged the judgment dated 21st December, 2005

passed by learned Addl. Sessions Judge (Fast Track) No.2,

Pali (for brevity, hereinafter referred to as ''Trial Court'') in

Session Case No.79/2005, whereby the accused appellant

was convicted for the offences under Sections 376 and

363 of IPC and following sentence was passed which

reads as under:

376 of IPC : - Life Imprisonment and fine of Rs.1000/- and in default of payment of fine, to further undergo three years'' rigorous imprisonment.

363 of IPC : - Three Years'' rigorous imprisonment along with fine of Rs.500/-, in default of payment of fine, to further undergo six months'' simple imprisonment.

FACTS OF THE CASE:

The complainant, PW.3, Firoz S/o Murad, submitted

a written report (Ex.P/1) against unknown persons at

Trauma Centre, Bangad Hospital, Pali, at about 11.55 PM

on 21.06.2005 to the S.H.O., Police Station Kotwali, Pali,

in which following allegations were levelled with respect to

rape committed with his ten years'' old daughter Ms. "R":

"VERNACULAR MATTER OMITTED"

Upon the aforesaid complaint submitted by the

complainant, formal F.I.R. No.306/2005 (Ex.P/32) was

registered on 22.06.2005 at Police Station- Kotwali, Pali,

for the offences under Sections 365 and 376 of IPC and

thereafter investigation was commenced. During

investigation, accused appellant was arrested on the basis

identification narrated by the prosecutrix "R" vide Arrest

Memo (Ex.P/13). The proceedings for identification was

also conducted in the District Jail, Pali on 23.07.2005 in

the presence of Judicial Magistrate, Pali, vide Ex.P/43 in

which prosecutrix identified the accused appellant and

corroborated the allegation of rape against the appellant.

The medical examination of prosecutrix as well as

appellant, Matin Khan, was conducted in the hospital, and

the medical examination report of prosecutrix Ms. "R" was

prepared vide Ex.P/22 and injury report (Ex.P/23) was

also prepared. After examination of the body of the

accused, Matin Khan, Injury report as well as medical

report of the accused appellant were also prepared vide

Ex.P/24 and Ex.P/27 respectively during the course of

investigation. Due to rape committed with the prosecutrix,

her physical condition become serious, therefore, for

further treatment she was referred from Bangad Hospital,

Pali after MLC to the Ummed Hospital, Jodhpur, where she

was admitted on 22.06.205 and remain hospitalized for

treatment up to 04.07.2005. In between that period, the

prosecutrix had to undergone operation, which is evident

from document Ex.P/48.

Upon the information given by the accused appellant

under Section 27 of the Evidence Act, the clothes and

other articles were recovered and place of occurrence was

also identified by the accused during investigation.

The other necessary investigation was also

conducted and the seized articles, viz. clothes and other

articles were sent for chemical analysis to the FSL to

ascertain the fact of rape upon the prosecutrix, and in

return 4 FSL reports vide Ex.P/36, Ex.P/37, Ex.P/38 and

Ex.P/39 were received. After completion of investigation,

charge sheet was filed against the appellant under

Sections 365 and 376 of IPC in the court of Chief Judicial

Magistrate, Pali, from where the case was committed to

the Sessions Judge, Pali, but later on transferred to the

court of learned Addl. Sessions Judge (FT) No.2, Pali for

trial.

The learned trial court after providing an opportunity

of hearing to the accused appellant framed charges

against the appellant under Sections 363, 365 and 376 of

IPC and the same were read over to the accused

appellant, which he denied and prayed for trial.

During trial, statements of 26 prosecution witnesses

were recorded and certain documents were also got

exhibited.

Learned trial court after recording the evidence of

prosecution evidence, proceeded to record the statements

of the accused appellant under Section 313 of Cr.P.C., in

which the accused appellant denied all the allegations

made by the prosecution witnesses and stated that a false

case has been registered against him and witnesses,

Hakim, Deeparam, Abid, Farukh assaulted him and said

that you leave Pali, else we will indulge you in a false case

because due to my business, they suffer financial loss. It

is further said that on 18th June I went Udaipur and I

remained at Udaipur till 26th June and from Udaipur I went

to Jaipur, therefore, all the allegations levelled by the

prosecution witnesses are false. In defence, no evidence

was produced by the accused appellant.

The learned trial court after providing opportunity of

hearing to both the parties convicted the accused

appellant for the offence under Sections 363 and 376 of

IPC vide judgment dated 21.11.2005, which is under

challenge in this appeal.

The instant appeal was filed initially by Mr. S.S.

Dhillon, Advocate, but at the time of hearing on

21.11.2016 nobody remained present, therefore, notice

was issued to the appellant to make alternative

arrangement to argue his appeal. Although notices were

served but nobody put-in appearance on behalf of accused

appellant. Therefore, Mr. Dileep Sharma was appointed as

amicus curiae to argue this appeal.

Learned amicus curiae vehemently argued that the

prosecution case is totally false and based upon concocted

story because in the F.I.R., the prosecutrix said that

accused appellant, who has committed rape with him,

stated that my name is Rafiq, working in Sabji Mandi and

gave details of his physic but it is very unfortunate part of

the accused that although the prosecutrix specifically

disclosed the name of accused, however, the appellant,

Matin Khan, was arrested illegally for the alleged offence

of rape with prosecutrix Ms. "R", therefore, the whole

prosecution story is based upon fabricated evidence so as

to connect the accused with the alleged crime of rape.

Learned amicus curiae submitted that there is no

eye witness in this case, so also, before identification

parade, photograph of accused appellant was already

shown to the prosecutrix, therefore, evidence of

identification in District Jail, Pali, before the Magistrate

cannot be relied upon so as to connect the accused

appellant with the alleged crime.

It is also argued that the appellant has falsely been

implicated by the so-called witnesses because for his

presence out of Pali, accused gave explanation in his

statements recorded under Section 313 Cr.P.C. The

evidence of last seen by the PW.18, Jalaram, which has

been taken into consideration for the purpose of holding

the accused appellant guilty, has no relevance with regard

to the incident because the day on which the offence was

committed with the prosecutrix, the appellant was out of

town and, therefore, the entire prosecution case is false.

Learned amicus curiae submitted that although

clothes of accused appellant were recovered and sent to

FSL and as per FSL report, on the clothes of prosecutrix

semen was found, so also in the injury report, injuries

were found upon the body of accused but for commission

of rape with prosecutrix, the accused appellant cannot be

held guilty because there is no eye witness, so also, in the

FIR it is stated by complainant, Firoz, father of the

prosecutrix, that as per information of prosecutrix, name

of accused was Rafiq and not Matin Khan, therefore, the

evidence upon which the trial court held the accused

appellant guilty, deserve to be quashed and set aside.

Learned amicus curiae further submitted that

although it is admitted fact that the accused appellant was

residing in the area and was consuming ''Ganja'' along with

Ishaq Bhai (PW.6), but mere fact that the appellant was

residing in the area where family of prosecutrix is

residing, cannot be taken on account as an evidence so as

to hold accused appellant guilty because there is no

trustworthy witness of the incident, more so, the

appellant was out of town on the date of incident.

Therefore, the judgment impugned may kindly be

quashed.

In the alternative, it is submitted that if this Court is

not inclined to accept the above arguments, then also, the

sentence of life imprisonment imposed against the

appellant, is excessive because the maximum punishment

can be imposed after recording specific reasons for

seriousness of the offence in view of judgment render by

Hon''ble Apex Court in the case of Sunil Dutt Sharma Vs.

State (Govt. of NCT of Delhi) reported in (2014) 4

SCC 375, which was relied upon by this Court in the case

of Gyarsi Lal Vs. State of Rajasthan reported in 2016

(1) Cr.L.R. (Raj.) 415, in which rape was committed

with five years'' girl but while following the verdict of

Hon''ble Apex Court in the case of Sunil Dutt Sharma

(supra), the sentence has been reduced from life

imprisonment to ten years rigorous imprisonment looking

to the facts and circumstances of the case.

On the other hand, learned Public Prosecutor

opposed the prayer made by the learned amicus curiae

and argued that although in the FIR lodged by the father

of the prosecutrix, it was stated the prosecutrix gave

information for commission of rape with her by Rafiq, and

so also, gave physical details of the accused, upon which

investigation was conducted. All the suspects of the area

concerned were called during investigation for the purpose

of investigation and during investigation, witness Jalaram,

specifically stated that on the date of incident, appellant

came to his hotel situated in the area and purchased two

Cavendor Cigarette and Toffee (mango fruity) and paid

10/- rupees, thereafter gave him back two coins of 5/-

and 1/-. It was also informed that the accused appellant

was going towards Manoj Motors along with a small girl

situated at Sabji Mandi Road. The said independent

witness i.e. PW.18- Jalaram who was running his hotel

near Manoj Motors, specifically reiterated before the court

on oath that he saw the accused appellant going along

with a small girl on the date of incident. The trial court

considered the evidence of last seen as well as evidence

of identification by the prosecutrix in jail, where the

prosecutrix identified the accused appellant in the

presence of magistrate. It is further argued that the

clothes of the prosecutrix, so also, semen of accused

appellant, Matin Khan and blood swab of Ms. "R" was sent

for examination to the FSL, in which positive report

(Ex.P/39) was recorded, therefore, the learned trial court

after taking into consideration the entire facts and

evidence on record, so also, the fact that due to rape

committed upon the prosecutrix, held accused appellant

guilty because she became unconscious and was admitted

in the hospital, where she remained admitted from

22.06.2005 to 04.07.2005, and operation was also

conducted in Ummed Hospital, Jodhpur. Therefore, the

accused appellant has been held guilty for offence under

Sections 376 and 363 IPC by the learned trial court,

therefore, no interference is called for in this appeal

looking to the seriousness of the offence committed by

the accused.

After hearing the learned counsel for the parties, we

have perused the entire evidence. Admittedly, the FIR

No.306/2005 was registered on 22.06.2005 against

unknown person u/s 365 and 376 of IPC upon a complaint

made by complainant, Firoz, father of the prosecutrix. The

said complaint was submitted at Bangad Hospital, Pali,

where the prosecutrix was under treatment. After MLC

due to critical condition of the prosecutrix, she was

referred to Ummed Hospital, Jodhpur for further and

better treatment. The prosecutrix was admitted at Ummed

Hospital, Jodhpur on 27.06.2005 and she remained there

up to 04.07.2005. In between the said period, she was

operated by Dr. Uma Bissa (PW.24).

A thorough investigation was conducted by the

Investigating Officer/S.H.O., Police Station Kotwali

(PW.23- Mohanlal). During investigation, accused

appellant was arrested on the basis of evidence of last

seen by the witness PW.18 Jalaram, and to prove the said

fact, witness PW.18- Jalaram, specifically stated before

the court that on the date of incident, he saw the accused

appellant, Matin Khan, near Manoj Motors when he was

going with a small girl towards Sabji Mandi road. The

prosecutrix as well as accused appellant, were medically

examined during investigation by the doctors and to prove

the said fact, statements of three doctors viz. PW.13, Dr.

Sunita Joshi, PW.14, G.N. Arora, and PW.25 Sunil Kothari

and PW.24 Dr. Uma Bissa, who conducted the operation

of prosecutrix at Ummed Hospital, Jodhpur were recorded

during trial and all these witnesses proved that rape was

committed with prosecutrix.

In the FSL reports, it was clearly reported that

semen was found upon the clothes of prosecutrix and

accused, vide Ex.P/36, Ex.P/37 and Ex.P/38, which loudly

speaks that the prosecution has proved its case beyond

reasonable doubt.

We have also perused the injury report of Ms. "R"

(Ex.P/23) dated 21.06.2005 in which six injuries were

found upon the body of prosecutrix. The prosecutrix was

medically examined at 11.15 PM on 21.06.2005 in Bangad

Hospital, Pali, which is evident from the document Ex.P/22

in which injuries are mentioned and there is specific

report about bleeding upon her private part. The recovery

of handkerchief (:eky) and other material recovered on

the basis of information given by the accused appellant

has been proved, so also, identification parade was

conducted in District Jail, Pali, in front of Judicial

Magistrate, Pali on 23.07.2005, in which the prosecutrix

identified the accused appellant and at the time of

recording her statements in the court as PW.1, prosecutrix

Ms. "R" specifically said that,

"VERNACULAR MATTER OMITTED"

In view of the fact that prosecutrix has specifically

identified the accused appellant in jail in front of

Magistrate, so also, in her statements recorded in the

court as PW.1, it is proved by her that accused appellant

present in the court has committee rape with her and at

the time of incident he said that my name is Rafiq. In

view of above evidence the prosecution has proved its

case beyond reasonable doubt, therefore, trial court

recorded the finding of guilt against the accused

appellant.

We have also considered the arguments of learned

amicus curiae and learned Public Prosecutor in the light of

evidence available on record. In our opinion, it is a case in

which a serious offence has been committed by the

accused appellant of rape with a ten years'' old girl and

not only forcibly in cruel manner but six injuries were

caused by the appellant on the body of prosecutrix. It is

also admitted fact of the case that for treatment, the

prosecutrix remained in hospital from 22.06.2005 to

04.7.2005, in between the said period, operation was also

conducted by the doctor at Ummed Hospital, Jodhpur,

therefore, no interference is called for in the sentence

awarded to the accused appellant.

So far as law laid down by Hon''ble Apex Court in the

case of Sunil Dutta Sharma (supra) is concerned, it is true

that the said verdict has been followed by a coordinate

bench of this Court in the Gyarsi Lal''s case and Subhash

Vs. State (D.B. Cri. Appeal No.147/2010, decided on

03.01.2017, however, the said ratio is not applicable to

the case in hand looking to cruelty and gravity of offence

committed by the accused appellant with a ten years'' old

girl. Therefore, we are not inclined to take any lenient

view to disturb the sentence of life imprisonment imposed

by the learned trial court for committing offence of rape

punishable u/s 363 and 376 of IPC .

In view of above discussion, we find no force in the

instant criminal appeal and the same is hereby dismissed.