Rehan Ansari, Son Of Samsuddin Ansari vs State Of Jharkhand

Pradeep Kumar Srivastava, J

I have already heard the arguments of Mrs. Jasvinder Mazumdar, learned counsel for the appellant and learned Spl.P.P. for State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 06.09.2008 and 10.09.2008, respectively, passed by learned IInd Additional Sessions Judge, Deoghar, in Sessions Case No. 10 of 2008, whereby and whereunder the appellant has been held guilty for the offence under Section 376 of the I.P.C. and sentenced to undergo R.I. for seven years along with fine of Rs.2,000/- with default stipulation.

Factual Matrix

Factual matrix giving rise to this appeal is that a complaint petition (Exhibit-1) was filed by the prosecutrix which was registered as P.C.R. Case No. 02 of 2007 stating inter alia that on 24.12.2006 at about 08:00 P.M., the complainant went outside the house for discharging nature's call and reached near the brick kiln, where accused Rehan Ansari forcibly committed rape on her. She raised alarm but the accused fled away. It is alleged that the complainant returned to her home and informed to her husband on telephone at Jaipur, where he was employed and her husband advised her not to lodge any case till his arrival. After arrival of her husband, the complainant lodged this case on 11.01.2007 before the Court of learned C.J.M., Deoghar. After conducting the enquiry, the accused was summoned for the offence under Section 376 of the I.P.C. The accused appeared and the case was committed to the Court of Sessions. The accused denied the charge leveled against him and claimed to be tried.

Before the learned Trial Court altogether 6 witnesses were examined by the prosecution.

P.W.-1-Yusuf Ansari

P.W.-2-Jamila Khatoon P.W.-3-Moin Ansari,

P.W.-4-Md. Nasriuddin

P.W.-5-Victim (Complainant)

P.W.-6-B.P. Yadav (Formal witness)

However, no documentary evidence except the complaint petition (Exhibit-1) has been adduced by prosecution.

The defence has also examined one witness Md. Kuthbudin Ansari (D.W.-1).

Apart from evidence of above witness, Exhibit-A certified copy of charge-sheet filed in Mohanpur P.S. Case No. 08 of 2007, dated 04.01.2007, wherein charge-sheet was filed for the offences under Sections 147, 448, 341, 323, 504 & 337 of the I.P.C. against Abdul Kadir and 16 other accused persons including the husband of the complainant and Exhibit-B shows that the charge under Section 379/149 of the I.P.C. was also framed against the accused persons.

Submissions on behalf of appellant: -

Learned counsel for the appellant has submitted that the learned Trial Court has miserably failed to consider that the accused is none else but nephew of the complainant aged about 20 years at the time of occurrence. The complainant is a married lady. There was land dispute between the husband of complainant and the appellant's family members. Both were residing in the same village and there was no partition of landed properties. It is highly strange to imagine that when the appellant has all the opportunity open to him to have sexual relationship with the complainant, why he should go to brick kiln for such type of incident. The complainant has manufactured a story which was never corroborated from any other witness. The evidence of complainant herself suffers from material contradictions and discrepancies which discredits her evidence. It was deliberate action of the complainant to institute the complaint case after three weeks of the alleged occurrence. The learned Trial Court on his own assumption and presumption believed the prosecutrix, without taking into consideration the defence evidence as well as the inherent improbabilities appearing in the evidence of complainant herself, therefore, committed serious error of law in recording the findings of guilt of the appellant as such impugned judgment is liable to be set aside, allowing this appeal.

Submissions on behalf of State: -

On the other hand, learned Spl. P.P. opposing the aforesaid contentions raised on behalf of appellant submitted that the learned Trial Court has very wisely and aptly considered the testimony of the victim lady who was helpless at the time of occurrence and there was no motive for false implication of the accused and no reason to disbelieve the testimony of the complainant. There is no necessity of any corroboration of the testimony of victim from any independent source or even by the medical report, when the evidence of victim is found to be wholly reliable. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant and no merits in this appeal which is fit to be dismissed.

I have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both sides.

The only point for determination in this appeal is that "as to whether the conviction and sentence of the appellant passed by learned Trial Court suffers from any serious error of law calling for any interference in this appeal?"

Analysis, discussions and reasons:-

Before adjudicating the aforesaid point, it is necessary to take brief resume of the evidence adduced during trial by the respective parties.

P.W.-5- is the complainant and star witness of this case. According to her evidence due to stomach pain at about 08:00 P.M., she went towards brick kiln for discharging nature's call and her elder Gotani (P.W.-2) was standing in front of the door. She went towards brick kiln, where Rehan Ansari came and committed rape on her pointing knife to her and threatening to kill. She raised alarm then her elder Gotani (P.W.-2) arrived there to whom she told that Rehan Ansari has committed rape upon her. Other witnesses Yusuf Ansari and Md. Nasriuddin also arrived at the place of occurrence. Her husband was at Jaipur (Rajasthan) hence, she made a telephonic call to him and he advised not to lodge any case, unless he returns back. Thereafter, she lodged this case.

In her cross-examination, this witness admits that in the next day morning, she informed to her husband on mobile of his employer at about 08:00-09:00 A.M. by mobile phone of Moin Ansari (P.W.-3). She has stated about the incident to Yusuf Ansari, Moin Ansari and Md. Nasriuddin, who have also not reported at police station. She does not know the village Mukhiya and Panchayat. She also admits that on 19.01.2007, the family members of accused persons have lodged a case of theft and assault against her husband and other family members. She has not undergone any medical treatment. She also admits that there was no talking terms with the accused and his family members prior to the occurrence. She also admits that in the village, there are two parties one is of her husband and another is Rehan Ansari (accused). She has denied the suggestion of defence that due to previous enmity she has falsely implicated the accused.

P.W.-1-Yusuf Ansari is the local villager. According to his evidence on the date of occurrence at about 08:00 P.M., he was going to his Khalihan and reached near the brick kiln then heard some hulla raised by the complainant and he also flashed his torch and saw Rehan Ansari was fleeing. He asked the victim lady about the occurrence then she told that Rehan Ansari has committed rape with her. Thereafter, he went away from the place of occurrence.

P.W.-2-Jamila Khatoon has also heard hulla while she was in her house and went to the brick kiln then complainant told her about commission of rape with her by present appellant. This case was lodged after returning of husband of the complainant from Jaipur.

In her cross-examination, she admits that the house of accused is adjacent to the house of complainant and she is Gotani of complainant. The accused in village relationship is her grandson and unmarried. She also admits that in connection with above incident a Panchayati was convened in the village wherein Rs.15,000/- compensation was imposed upon the accused Rehan Ansari and due to non-payment of above money occurrence of assault was also took place in the Panchayati. She also admits that uncle of Rehan Ansari (accused) namely, Asaruddin has also lodged a case on her family members in which her husband and elder brother-in-law is also accused.

P.W.-3-Moin Ansari also heard hulla while he was going to his Khalihan and in torchlight, he saw Rehan Ansari was fleeing near the brick kiln. He also found the complainant was weeping and she disclosed that Rehan Ansari has committed rape with her. He also admits land dispute and litigation between family members of complainant and the accused.

P.W.-4-Md. Nasriuddin has also approached to the place of occurrence after hearing hulla and reached near the victim who disclosed about commission of rape upon her.

P.W.-6-B.P. Yadav is advocate clerk and formal witness who has proved the complaint petition, signature of typist on the complaint petition as Exhibit-1.

On the other hand, D.W.-1-Md. Kuthbudin Ansari has deposed that he is acquainted with the complainant and the accused. Complainant is his aunt and her husband is uncle. Accused Rehan Ansari in village relationship, is nephew. He has stated that this false case has been lodged due to village rivalry and litigation is pending between the parties in respect of land dispute.

From the aforesaid evidence adduced by the parties, it is crystal clear that there was inimical terms between the complainant's family and the family of appellant and there was no talking terms between the parties since prior to the occurrence. The main relatives of the complainant, namely Moin Ansari (P.W.-3) and Md. Nasriuddin (P.W.-4), who were disclosed at the earliest on the date of occurrence itself about the occurrence by the complainant have not lodged any case nor brought the matter to the notice of Village Mukhiya or Pandhayat. As against it, the P.W.-2, who happens to be Gotani of the prosecutrix states that a Panchayati was held in connection with this matter and Rs.15,000/- compensation was imposed against the accused Rehan Ansari, which he did not paid rather a scuffle took place between the parties. This P.W.-2 was standing outside the house when the prosecutrix proceeded for discharging nature's call. On the other hand, the prosecutrix says that she alone went to discharge nature's call about 200 yards away from her house near brick kiln. It is also admitted that her husband and other family members have been made accused in the case lodged by uncle of Rehan Ansari (appellant). There is concealment of any factum of Panchayati by P.W.s-3, 4 & 5 as well as suppression of mobile number by which the telephonic call was given to prosecutrix's husband, informing about this incident and he advised to not lodge any case. The prosecutrix says that it was the mobile of Moin Ansari by which call was made to the employer of her husband, but surprisingly the husband of the complainant has also not been examined in this case to support the appellant version even P.W.-3, Moin Ansari has not been able to say that what is his mobile number, which was used in making a call to the employer of the complainant's husband. The mobile number of employer of husband has also not been disclosed either by the complainant or by Moin Ansari (P.W.-3). Therefore, waiting for quite three weeks long period for lodging the case without undergoing any medical examination or reporting the police about such type of serious offence spreads a serious cloud on the veracity of the prosecution case. It appears that the learned Trial Court has simply believed the testimony of complainant to be wholly true without analyzing her evidence in the totality of circumstances of the case and the materials elicited during cross-examination in view of existing enmity and litigating terms between the parties and even there was no talking terms prior to occurrence between the appellant and the complainant. The totality of circumstances as discussed above clearly spells out that this case was lodged only on account of enmity between the parties and no positive materials have been brought on record to sustain a conviction for the offence under Section 376 of the I.P.C. against the appellant.

In view of above discussion and reasons, I find that the impugned judgment of conviction and sentence passed by learned Trial Court against the appellant is absolutely illegal, unwarranted and beyond the weight of evidence available on record and suffers from serious error of law in non-consideration of overall materials. Therefore, impugned judgment and order of conviction and sentence of the appellant is hereby set aside and this appeal is allowed.

The appellant is on bail, he is discharged from the liability of his bail bond and his sureties are also discharged.

Pending I.A(s), if any, stand disposed of accordingly.

Let a copy of this judgment along with Trial Court records be sent back to the court concerned for information and needful.