Rafiq Khan vs State of Madhya Pradesh

This criminal appeal has been filed assailing the impugned judgment dated 12.8.1997 passed by First Additional Sessions Judge, Se-hore Camp Ashta,

District Sehore in Session Trial No. 188/96 whereby the appellant has been convicted under Sections 376 and 342 of the IPC and sentenced to

undergo RI for 10 years along with fine of Rs.5000/-and RI for 3 months along with fine of Rs.500/-, with default stipulation as mentioned in the

impugned judgment.

In brief the relevant facts of the case are that on 29.10.1996 prosecutrix lodged a report in the police station Javar, District Sehore to the effect that

she is the resident of village Kajlas, Police Station Javar, District Sehore. On 28.10.1996 at 9:30 O’clock in the night she went for watching T.V.

at the house of her maternal uncle Mohd. Khan and on returning, at about 11.05 O’clock in the night she was pissing outside of her house, at that

time, the appellant / accused, resident of the same village, came over there and he gagged a white handkerchief in the mouth of the prosecutrix and

took her to a dilapidated house of one Ambaram and closed the doors by putting a brick. The prosecutrix tried to scream and also tried to run away

from the hold of the appel - lant / accused, on which, the appellant / accused threatened her not to make cry otherwise he would kill her, due to which,

the prosecutrix got afraid. Thereafter, the appellant / accused kissed her cheeks, pressed her breast and threw her on the ground and after putting off

her under - garments committed sexual intercourse with her. After commission of rape, the appellant / accused pulled out handkerchief from the

mouth and threatened her not to tell about the incident to anybody otherwise he would kill her. On hearing cry of the prosecutrix, her brothers Sabir

and Javed reached on the spot and they saw the prosecutrix putting on cloth and also saw the appellant / accused wearing pant and running him from

the spot. The prosecutrix disclosed the incident to them. On 29.10.1996 at about 1:45 O’clock in the night, the prosecutrix along with her bothers

and maternal uncle lodged the report of the incident against the appellant / accused at Police Station Javar, District Sehore which was registered at

Crime No.322/96 under Section 376 and 506 of the IPC. Thereafter, criminal law set in motion. Medical examination of the prosecutrix was got done

and during investigation, medical exami-nation of the appellant / accused was also got done. Statements of the witnesses were recorded. After

completion of all formalities, charge sheet for the offence under Sections 376, 342 and 506 of the IPC was filed before the court concerned, from

where, the case was committed to the Court of Sessions for trial.

Appellant / accused abjured the guilt and pleaded inno-cence and claimed to be tried. In defence no evidence has been ad-duced.

Learned trial Court after completion of trial, convicted and sentenced the appellant / accused as mentioned above on the basis of the statement of

the prosecutrix and other witnesses.

On behalf of the appellant-accused, aforesaid finding of the conviction has been assailed on the ground that the learned Trial court has failed to

appreciate the evidence properly in the right perspective. Learned Trial court has relied upon the interested and motivated wit-nesses. Learned trial

court has committed grave error in relying on the testimony of them. Such contradictory version is not supported by any reliable or believable

evidencing material. The prosecutrix (PW-1) stated in cross examination that somebody caught hold of her and she was not a position to identify the

said person as he had tied the black colour cloth on his face. The statements of Javed (PW-3) and Sabir (PW-4) have specifically admitted that they

had not seen the appellant / accused on the spot and they were not able to identify him. Hence, the appeal be allowed and the appellantâ€"accused be

acquitted.

Learned Govt. Advocate appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of

conviction and sentence of the learned trial court is in ac-cordance with law. The commission of rape on the prosecutrix has been established and that

act was committed by the appellant / ac-cused has also been established by the prosecution. Learned trial court has not committed any error in relying

on the version of the witnesses supporting the prosecution case in the light of the judgment of the Apex Court in the case of Khujji @ Surendra Tiwari

vs. State of Madhya Pradesh (1991) 3 SCC 627. Hence, the appeal be dismissed.

Having considered the contentions of learned counsel for the parties and on perusal of the record, it appears that there is no con-troversy that on

the fateful night rape was committed with the pros-ecutrix. This fact has been proved by the prosecution by the testimony of the prosecutrix (PW-1)

and corroborated by the statements of her brothers Javed (PW-3) and Sabir (PW-4) who reached on the spot hav-ing heard cry of the prosecutrix and

saw running away the appellant /accused from the spot and wearing cloths by the prosecutrix on her person and narrating the incident to them and

also corroborated by the statement of mother Barkat Bi (PW-2) and maternal uncle Mohammad Khan (PW-5) to whom the prosecutrix narrated the

incident of rape when she reached the house with her brothers and FIR Ex.P/2 lodged by the prosecutrix (PW-1) on morning on 29.10.1996 at Police

Station Javar, District Sehore. This fact is further supported by the medical evi-dence. Dr. R. D. Vaisnav (PW-9) has stated that on 29.10.1996 he

exam-ined the prosecutrix and found marks of biting on the right cheek caused within 24 hours and prepared MLC report Ex.P/12 and referred the

prosecutrix to a lady Dr. Smt. Malti Arya (PW-10) who has stated that on 29.10.1996 she examined the prosecutrix and found injury on right cheek

and also found abrasions on neck and right breast; and pri-vate part was injured and painful and there was bleeding on touching of it and hymen was

torn and ruptured. On her underwear blood stains were present and some white spots were also there and this witness categorically opined that the

prosecutrix was subjected to sexual as-sault and rape was committed with her and prepared report Ex.P/13 and also handed over vaginal swab and

underwear in a sealed cover for the chemical examination to the police. FSL report Ex.P/1 has confirmed the presence of blood and semen on the

underwear of the prosecutrix.

The aforesaid evidence has remained unimpeachable during cross examination and the credibility of the aforesaid evidence has also not been

assailed here. Having careful scanning of the aforesaid evi-dence, in view of this court, there is nothing on record to discard the aforesaid evidence.

Hence, there is no hesitation to hold that on 28.10.1996 the prosecutrix was subjected to sexual intercourse under fear.

Now the question is that whether sexual intercourse with the prosecutrix was committed by the appellant without her will and consent. In this

regard, learned trial court has placed reliance on the evi-dence of the prosecutrix (PW-1) and her brothers Javed (PW-3) and Sabir (PW-4); her

mother Barkat Bi (PW-2) and her maternal uncle Mo-hammad Khan (PW-5). Prosecutrix (PW-1) has stated that on 28.10.1996 near about 9:30 pm

she went for watching T. V. at the house of her ma-ternal uncle Mohammad Khan (PW-5) and on returning near about 11 pm she was pissing outside

of the house, at that time, the appellant-ac-cused resident of her village came to her and gagged a white handker-chief in the mouth of the prosecutrix

and took her forcefully nearby a dilapidated house and closed the door and put one brick to stop the door and when she tried to scream and run away

from the hold of the appellant-accused, he threatened her to kill. She got afraid then the ap-pellant-accused kissed on her cheek and bit her cheek and

pressed her breast and threw her on the ground and after putting off her under - wear committed sexual intercourse with her. She was having pain

and there was bleeding from her private part. When she was released by the appellant-accused, she wiped off her vagina with her underwear and

made cry and on hearing cry, her brothers Javed (PW-3) and Sabir (PW-

4) reached on the spot and saw the prosecutrix putting on clothes on her person and running away the appellant-accused. She narrated the incident

and name of the appellant-accused to her brothers and then went to her house where she also told the incident to her mother and maternal uncle and

on the morning she went to lodge the FIR which is Ex.P/2 and thereafter, she was medically examined and her underwear was taken.

Other witnesses, her brothers Javed (PW-3), Sabir (PW-4), her mother Barkat Bi (PW-2) and maternal uncle Mohammad Khan (PW-5) have

supported the aforesaid version of the prosecutrix (PW-1).

Dr. K. K. Chaturvedi (PW-8) has also stated that on 1.11.1996 he examined the appellant and found him capable to commit sexual in- tercourse.

On his underwear there were some spots. Samples of his se-men and underwear were taken and handed over the same to the po-lice for chemical

examination and prepared report Ex.P/8. Constable Asharam (PW-7) has also stated that a sealed packet of underwear and sample of sealed semen

were received from the hospital and the same were deposited in the police station Javar where seizure memo Ex.P/7 was prepared. Chatur Singh

(PW-11) Head constable has also stated that on 29.10.1996 he recorded the FIR Ex.P/2 as per narration of the prosecutrix. Laxmi Prasad

Shrivastava (PW-13) has also stated that he received the aforesaid sealed packet and slide packet in the police sta-tion Javar from the constable

Asharam (PW-7). FSL report Ex.P/1 shows that on the underwear of the prosecutrix and on the underwear of the appellant blood stains and human

semen were present.

The aforesaid evidence points out that appellant commit-ted sexual intercourse with the prosecutrix forcefully in other words without her consent

and will, but the aforesaid witnesses, Prosecutrix (PW-1), brothers of the prosecutrix Javed (PW-2), Sabir (PW-3), mother Barkat Bi (PW-2) and

maternal uncle Mohammad Khan (PW-5) have also given different versions in their cross-examination. Prosecutrix (PW-1) has stated that she has

not identified the person who committed sexual intercourse forcefully with her as he covered his face with the cloths and she did not name the

appellant about committing sexual inter-course with her to her brothers, mother and maternal uncle; and the brothers, the mother and the maternal

uncle also in their cross exami-nation have stated that prosecutrix did not name the appellant / ac-cused as she had not identified the person who

committed sexual inter-course with her. Thereafter, Public Prosecutor with the permission of the court after declaring them hostile cross-examined

them, in which, they affirmed that statements given in the cross examination are cor-rect.

In view of the aforesaid contradictory versions of the wit-nesses, learned counsel for the appellant contended that when the wit-nesses have given

contradictory statements or inconsistent statements and they have been declared hostile by the prosecution and on the ba-sis of the aforesaid

testimony, the appellant cannot be held guilty for commission of rape and the learned trial court has committed grave er-ror.

On perusal of the findings of the learned trial court it is found that learned trial court has considered the judgment of the Apex Court passed in the

case of Khujji @ Surendra Tiwari (Supra) which is an identical case. In this regard, the paragraphs no. 7 and 10 are rele-vant. The relevant

observation of para no. 6 is as under :-

“The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross

examined him. The evidence of such witness cannot be treated as ef-faced or washed off the record altogether but the same can be accepted to the

extent his version is found to be dependable on a careful scrutiny thereof.

In the present case the presence of the eye-witnesses in the company of the deceased at the place of occur-rence could not be doubted. One of the

witnesses was injured in the incident. Immediately after the incident within less than an hour, before there was any extra-neous intervention he went

to the police station, nar-rated the incident and lodged the FIR. Since the FIR was a detailed document it is not possible to believe that the investigating

officer imagined those details and prepared the document. The detailed narration about the incident in the FIR goes to show that the subsequent

attempt of the witness to disown the doc-ument while admitting his signature thereon, is a shift. The only area where the witnesses had not supported

the prosecution and resiled from their earlier state-ments is regarding the identity of the assailants. The evidence of the eye-witnesses was challenged

by the prosecution in cross-examination because they re-fused to name the accused as the assailants of the de-ceased. The trial court made no effort

to scrutinize the evidence of these two witnesses even in regard to the factum of the incident.â€​

Paragraph no. 7 is as under :-

“That brings us to the evidence of PW 1 Komal Chand. Komal Chand's evidence was not accepted by the trial court on the ground that he was

not a natural witness and was only a chance witness. PW 1 explained his presence by stating that he had gone to the market to purchase vegetables

and while he was returning therefrom on foot with his cycle in hand he heard a commotion and saw the incident from a short dis-tance. Being a

resident of Suji Mohalla, the place of oc-currence was clearly in the vicinity thereof and, there-fore, his presence at the market place could not be

considered to be unnatural. It is not unnatural for working people to purchase vegetables at that hour and, therefore, his explanation regarding his

presence cannot be ruled out as false. The sketch map prepared by PW 11 Gaiser Prasad shows that he had seen the in-cident from a short distance

of hardly 22 feet although PW 1 says he saw it from the square. Since the incident occurred at a public place with a lamp-post nearby, the possibility

of his having identified the assailants could not be ruled out. The examination-in-chief of this wit-ness was recorded on November 16, 1976 when he

identified all the assailants by name. He stated that he knew the six accused persons in court and they were the persons who had surrounded the

rickshaw and launched an assault on PW 4 and the deceased Gulab. Of them Gopal struck PW 4 with a chain. He also stated that the appellant Khujji

and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted Khujji that man is

not Gulab"". There- upon Khujji and his com-panions ran after the Gulab, overtook him and the ap-pellant, Parsu and Gudda assaulted Gulab with their

weapons. Gudda struck Gulab from the front on his chest, Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and

the appel-lant attacked him from behind with a knife whereupon Gulab staggered shouting 'save-save' and fell in front of the house of Advocate

Chintaman Sahu. Thereafter all the six persons ran away. His cross examination commenced on 15th December, 1978. In his cross-ex-amination he

stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the re-maining

four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr.Lalit submit-

ted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the

basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period

that elapsed since the recording of his examination-in-chief some-thing transpired which made him shift his evidence on the question of identity to help

the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant

and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief.

Since the incident occurred at a public place, it is rea-son- able to infer that the street lights illuminated the place sufficiently to enable this witness to

identify the assail- ants. We have, therefore, no hesitation in con-cluding that he had ample opportunity to identify the assailants of Gulab, his presence

at the scene of occur-rence is not unnatural nor his statement that he had come to purchase vegetables unacceptable: We do not find any material

contradictions in his evidence to doubt his testimony. He is a totally independent wit-ness who had no cause to give false evidence against the

appellant and his companions. We are, therefore, not impressed by the reasons which weighed that the trial court for rejecting his evidence. We agree

with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants.â€​

The relevant observation of para 10 is as under :-

“The finding of human blood on the weapon and cloth on the accused is material consideration even in the absence of determination of blood

group. This circumstance lending corroboration to the direct testimony of the prosecution witnesses if no explana-tion on the presence of human blood

on the cloth given by the accused.â€​

Thus, in the aforesaid case it is held that the evidence of the prosecution witnesses cannot be rejected merely because of the prosecution chose to

treat them as hostile and cross examined them. The evidence of such witnesses can be accepted to the extent their ver-sions are found to be

dependable on a careful scrutiny thereof.

In the present case, chief-examination of the aforesaid wit-nesses have been recorded on 13.2.1997, in which, they have supported the prosecution

version and identified the appellant as culprit but their cross-examinations were deferred and it was recorded on 10.7.1997 af-ter near about 5 months

of the incident in which the witnesses denied the fact about the identity of the appellant as culprit and thereafter they were declared hostile on the

point of identification of the appel-lant by the prosecution. The circumstance of this case is identical with the aforesaid judgment of Khujji @ Surendra

Tiwari (Supra). The ver-sion given in the chief examination is supported by the FIR Ex.P/2 and also supported by the FSL report Ex.P/1 and the

medical evidence. In such circumstances, learned trial Court has not committed any error to come to the conclusion that the appellant was the person

who commit-ted forceful sexual intercourse with the prosecutrix and the contention of learned counsel for the appellant has no substance.

In view of the aforesaid discussions, it is considered view of this Court that the prosecution has succeeded to prove the offence pun-ishable under

Sections 376 and 342 of the IPC against the appellant be-yond reasonable doubt. Hence, this appeal is dismissed. The finding of conviction and

sentence awarded by the trial court is hereby affirmed. The appellant is on bail. His bail bonds stand cancelled. He is directed to surrender forth with

before the trial court and the trial Court shall send him to jail for serving out remaining part of his jail sentence in accor-dance with law.

A copy of this order be sent to the trial court and the jail au-thorities concerned for information and necessary action.