Rajasthan High Court - Jodhpur
Nazam Ali @ Chankia & Anr vs State on 1 February, 2011
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
NAZAM ALI alias CHANKIA & ANR. vs. THE
STATE OF RAJASTHAN
S.B. Criminal Appeal No.80/2007
Under section 374 (2) of Cr.P.C.
against the judgment and order dated
12.01.2007 as well as the sentence
dated 16.01.2007 passed by the
Special Judge, Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) , Cases, Hanumangarh in
Sessions Case No.06/2005 .
....
DATE OF JUDGMENT :: 01st February,2011.
PRESENT
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr.M.K.Garg for the appellants.
Ms. Chandra Lekha, Public Prosecutor.
BY THE COURT:
The accused appellants Nazam Alsi @ Chankia s/o Hanif Khan and Smt.Razi @ Razia, w/o Ramjan, both 2 b/c Mohammedan, residents of village Jahana at present residing at village Dhakarulvalla , Police Station Pilibanga, District Hanumangarh, have preferred this appeal against the judgment and order dated 12.01.2007 as well as the sentence dated 16.01.2007 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Cases, Hanumangarh in Sessions Case No.06/2005, whereby he convicted and sentenced the accused appellants as under:
Name Offence under Sentence
section
Nazam Ali 376 (1) IPC 8 ½ years rigorous
imprisonment and a fine of
Rs.10,000/- and in default of
payment of fine to further
undergo two months' rigorous
imprisonment.
342 IPC Six months' rigorous
imprisonment.
Smt.Razi@ Razia 376 (1)/120/109 IPC 7 years' rigorous
imprisonment.
342 IPC 6 months' rigorous
imprisonment.
The learned trial court acquitted both the accused appellants for the offence under section 3 (1)(x) and 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3
The brief facts of the case, giving rise to this appeal are that on 12.11.2004 one FIR was lodged by Saroj d/o Pappu @ Krishan stating inter alia that on 28.10.2004 her parents had gone to the field and she and her brother were only at home and at about 09.00 AM, their neighbour Smt.Razi @ Razia called her and took her to the house and put her in one room where accused Nazam Ali was already hiding and thereafter Razia went away after locking the room and accused Nazam Ali committed rape on her. On hearing her cry, her brother Dhanraj called her parents and thereafter Razi @ Razia came and opened the lock of the room and accused Nazam Ali ran away. On this report, police registered a case and started investigation and after investigation, police filed challan against the accused appellants. Thereafter the case was committed for trial, in the court of learned Special Judge, Scheduled Castes Scheduled Tribes (Prevention of Atrocities) , Cases, Hanumangarh where the charges were framed against the accused and the trial began.
During the trial, prosecution examined as many as 15 witnesses and the statements of accused 4 appellants were recorded under section 313 Cr.P.C. On the defence side , statements of D/W 1 to D/W 5 were recorded . After conclusion of trial, the learned trial judge vide judgment dated 12.01.2007 and 16.01.2007 has convicted the accused appellants as stated above.
Being aggrieved by the order of the learned Special Judge, the accused appellants have preferred this appeal.
Learned counsel for the accused appellants contended that Smt.Razi @ Razia has been charged for the offence under section 342 and section 376 IPC, whereas it is the settled principle of law that a lady cannot be charged for committing the offence of rape, as propounded by Hon'ble Supreme Court in Priya Patel vs. State of Madhya Pradesh & Anr. [2006 R.Cr.D.800 (SC)].
The learned counsel for the accused appellant further contended that Smt.Razi @ Razia can only be convicted for the offence under section 342 IPC. As per the First Information Report and the evidence produced 5 during the course of trial, the prosecution tried to prove this fact that when the prosecutrix was called by accused Smt.Razia, soon after entering the house of accused Smt.Razia, closed the door of the room where the offence of rape was committed.
The learned Public Prosecutor contended that the present appellant Smt. Razi @ Razia has been convicted with the aid of section 109 IPC for the offence under section 376 IPC and the offence of abatement of rape is well proved against accused appellant Smt.Razia and even if there is no charge of the abatement or conspiracy and the accused is not prejudiced,it was well within the knowledge that she is not facing the charge under section 376/109 IPC.
I have considered the rival contentions of both the parties and perused the judgment cited by the learned counsel for the appellants.
Accused appellant Smt.Razia has been charged for the offence under section 376 IPC per se the offence as charged by the learned trial court is not in accordance with the settled principles of law. In the 6 present case, when she has been charged for the offence under section 376 IPC, she was defending only for the offence under section 376 IPC. Although for determining this fact that whether the accused was prejudiced or not the tone, toner and the way of the cross-examination can be seen for making an inference that whether the accused has been prejudiced or not ?. But looking to all the facts and circumstances of the case, it cannot be said that the accused appellant Smt.Razia has not been prejudiced in defending herself, while facing the charge under section 376 IPC.
The learned counsel for the appellants contended that the learned trial court, while convicting the accused Smt.Razi @ Razia under section 376/ 120B/109 IPC observed that although Razi @ Razia was charged for the offence under section 376 IPC but from the charge itself it appears that she had been charged for the offence under section 376/109 IPC and the observation of the learned trial court is baseless. It was further contended that the charges against the accused Nazam Ali @ Chankia and Razi @ Razia reads in the same language and they are the typed copy. 7 Therefore, it cannot be said that against Raza @ Razia the charges were for offence under section 376/120B / 109 IPC. Therefore, the finding of the learned District Judge cannot be sustained.
As held by the Hon'ble Supreme Court in Priya Patel's case (supra), the conviction of the accused appellant Razi @ Razia under section 376/109 IPC cannot be sustained because she was not charged for conspiracy or abatement to commit the offence of rape and from the cross-examination, it cannot be said that she has not been prejudiced in defending herself.
I have perused the judgment and the evidence adduced by the prosecution during the course of trial.
So far as the offence under section 376 IPC is concerned, the learned counsel for the accused appellants contended that there is a major contradiction in the statement of the witnesses and further he contended that there is an inordinate delay in lodging the First Information Report. Therefore, the offence under section 376 or 342 IPC is not proved 8 against the accused appellants.
I have perused the statement of witnesses adduced during the course of trial.
As per the evidence adduced during the course of trial, it cannot be said that there is an inordinate delay in filing the FIR and further the fact of the commission of rape, is proved by the medical evidence adduced by the prosecution. PW/4 Dr.R.C.Ola corroborated the evidence of commission of rape. Therefore, offence under section 342 and 376 IPC are proved beyond reasonable doubt against the accused appellants.
In the societies where such offence is committed, the parents of the prosecutrix take special care for lodging the first Information Report for such offences. Therefore, where the parents of the prosecutrix were illiterate, not knowing the niceties of the law, it cannot be said that there was an inordinate delay in lodging the FIR. Further, from the report of the Forensic Science Laboratory ,human semen was detected from the saliva of the prosecutrix. It further corroborates the story of the prosecution.
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Now coming to the point of sentence, the learned counsel for the accused appellants contended that accused Smt.Razia has already undergone three months' rigorous imprisonment and the trial court has punished her for the offence under section 342 IPC to six months' rigorous imprisonment. The learned counsel prayed that Smt.Razia may be sentenced to the period already undergone.
Learned counsel for the accused appellant contended that the accused Nazim Ali has served the sentence for about 6 years and 3 months and he has been sentenced for the offence under section 376(1) IPC to 8½ years' rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo two months' rigorous imprisonment and for the offence under section 342 IPC he was sentenced to 6 months' rigorous imprisonment.
Looking to the entire facts and circumstances of the case, accused appellant Smt.Razi @ Razia w/o Ramjan is acquitted of the offence under section 376 IPC and for the offence under section 342 IPC she is 10 sentenced to the period already undergone.
So far as accused Nazam Ali @ Chankia , s/o Hanif Khan is concerned , he has already undergone rigorous imprisonment for a period of six years and three months. For the offence under section 376(1) and 342 IPC, he is sentenced to the period already undergone. Both the sentences are ordered to run concurrently.
Accordingly, the appeal is partly allowed as indicated above.
(KAILASH CHANDRA JOSHI),J.
l.george