Rajasthan High Court - Jaipur
Shoukat vs State Of Rajasthan on 27 July, 2001
Equivalent citations: 2002CRILJ364, 2002(3)WLN316
JUDGMENT Garg, J.
1. This appeal has been filed by the accused appellants against the judgment and order dated 16.2.1987 passed by the learned Addl. Sessions Judge, Nagaur in Sessions Case No. 24/1985 by which he convicted the accused appellants for the offence under Sections 366 and 354 IPC in place of 376/511 IPC and sentenced in the following manner:-
Name of accused appellant Convicted u/Sec.
Sentence awarded to each accused appellant
1. Shoukat
2. Harun 366 1PC Four years' Rl and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo Rt for two months.354
IPC Two years' RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo Rl for two months.
Both the substantive sentences were ordered to run concurrently.
2. The facts giving rise to this appeal, in short, are as follows:-
On 27.5.1985 at about 12.30 PM, PW1 Rampyari (hereinafter referred to as the prosecutrix), aged 35 years, who was-Nurse (ANM) in the Primary Health Centre, Basni District Nagaur lodged a written report Ex.P/1 before the Chief Medical & Health Officer, Nagaur through proper channel and thus, presented through PW5 Dr. S.S. Purohit, who was Medical Officer & Incharge of Primary Health Centre, Basni stating inter-alia that on that day at about 3.30 AM, two persons, the name of one of them was Shoukal (accused appellant) and she did not know the name of other person, came to her house and knocked the door and accused appellant Shoukat told her that there was a case of delivery near the house of Mokli and he requested her to go there and upon this, she became ready and she informed him that first she would ask from her Medical Officer and upon this, accused appellant told her that doctor was also sitting there and thereafter, she accompanied them and when they reached near the Talab on the way, prosecutrix PW1 Rampyari asked them that this was not the way for the purpose for which she was going, then they told that they were very near to the place and as soon as they proceeded further, seeing lonely place, accused appellant Shoukat caughthold her hand and asked her to put off her clothes, upon this she made hue and cry, but accused appellant Shoukat put his hand on her mouth and put her on the ground, as a result of which, she received injuries on both knee and accused appellant Shoukat also best her and when she made hue and cry, neighbours including some women came there any seeing them, accused appellant Shoukat left her and ran away from the scene and another accused, who was with him, also ran away. It was further stated in the report that many people tried to apprehend the accused appellant Shoukat and other accused person, but they could not succeed. Thereafter, she submitted the report before PW5 Dr. S.S. Purohit, who forwarded the same to the Chief Medical & Health Officer, Nagaur and thereafter, it was sent to the Police Station Nagaur, where PW7 Ugam Singh, who was SHO in that Police Station, registered the case for the offence under Section 376/511 IPC and chalked out regular FIR Ex.P/11 and started investigation.
It may be stated here that on 30.5.1985, prosecutrix PW1 Rampyari submitted another report Ex.P/2 before PW7 Ugam Singh, S.H.O., Police Station Nagaur stating inter-alia that she had now come to know the name of another accused, who was with accused appellant Shoukat and his name was Harun (accused appellant). It was further slated in the report that during scuffle, she had also lost her watch.
During investigation, police seized the clothes of the prosecutrix PW1 Rampyari consisting of one saree, one patticoat, one blouse through seizure memo Ex.P/4. The blouse was torn and botton was also found broken and patticoat was also found torn over the area before knee joint and they were stained with blood. The prosecutrix PW1 Rampyari was got medically examined by the Medical Board on 27.5.1985 at 7.00 PM and one of the members of the Medical Board was PW2 Dr. Radha Kishan Soni and her injury report is Ex.P/5, which shows that she received five injuries. The accused appellant Shoukat was arrested on 29.5.1985 through arrest memo Ex.P/8 and simultaneously, accused appellant Harun was also arrested on 29.5.1985 through arrest memo Ex.P/9.
After usual investigation, police submitted challan against the accused appellants in the Court of Chief Judicial Magistrate, Nagaur from where the case was committed to the Court of Session.
On 24.8.1985, the learned Addl. Sessions Judge, Nagaur framed charges for the offence under Sections 366, 376/511 and 354 IPC against the accused appellants. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 7 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under Section 3'3 Cr.P.C. were recorded. In defence, three witnesses were produced by the accused appellants.
After conclusion of trial, the learned Addl. Sessions Judge, Nagaur through his judgment and order dated 16.2.1987 convicted the accused appellants for the offence under Sections 366 and 354 IPC in place of 376/511 IPC and sentenced them in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts for the offence under Sections 366 and 354 IPC against both the accused appellants.
Aggrieved from the said judgment and order dated 16.2.1987 passed by the learned Addl. Sessions Judge, Nagaur, this appeal has been filed by the accused appellants.
3. In this appeal, the following submissions have been made by learned counsel appearing for the accused appellants:-
1. That learned trial Judge has not scrutinized the evidence of the prosecutrix PW1 Rampyari correctly and her statement suffers from inherent infirmities and furthermore, though it is written in the report Ex.P/1 that neighbours including many women reached on the spot, but none has been produced and especially Kalsam, whose name was disclosed by prosecutrix in her statement, has not been produced, therefore, in absence of their evidence and in absence of corroboration to the statement of the prosecutrix, her statement should not have been believed by the learned trial Judge.
2. That there is no legal evidences so far as the accused appellant Harun is concerned, as his name was not mentioned in the report Ex.P/1 and no identification parade has been conducted. Thus, this accused appellant be acquitted of all the charges framed against him.
3. That so far as the accused appellant Shoukat is concerned, no case for the offence under Section 366 1PC is at all made out and if Court comes to the conclusion that he has committed the offence under Section 354 IPC, as he has remained in PC & JC for nearabout 28 days, he may be granted the benefit of probation or he may be sentenced to the period already undergone by him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Nagaur.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
6. Before appreciating the above contentions, first medical evidence has to be seen, which is found in the statement of PW2 Dr. Radha Kishan Soni. .
7. PW2 Dr. Radha Kishan Soni states on 27.5.1985 he was Medical Jurist in the Government Hospital, Nagaur and for medical examination of the prosecutrix PW1 Rampyari, a Medical Board consisting of three doctors was constituted and he was Head of the Board and on examination of the prosecutrix PW1 Rampyari, the following injuries were found on her person:-
1. Abrasion 2 1/2 cm x 2cm on left knee on patella.
2. Abrasion 3cm x 2cm on right knee on patella.
3. Abrasion 1/4cm x l/4cm on right palm near wrist joint ulner side.
4. Abrasion 1/4 cm x 1/4 cm on left palm near wrist joint radial side.
5. Complained of pain in neck and left side face. No external injury seen.
He has proved the injury report Ex.P/5.
8. Thus, from the statement of PW2 Dr. Radha Kishan Soni, it appears that on the date of occurrence, prosecutrix PWl Rampyari received the five injuries as mentioned above. It may be stated here that PW2 Dr. Radha Kishan has clarified that these injuries could not be self-inflicted, but they could be caused because of falling down.
9. In this case, the alleged incident took place on 27.5.1985 at about 3.30 AM and the report was lodged just after few hours and thus, there is no delay in lodging the report Ex.P/1. There is also no dispute on the point that on the relevant date, prosecutrix PW1 Rampyari was Nurse (ANM) in the Primary Health Centre, Basni.
10. From the report Ex.P/1, the following facts come in light:-
1. That on 27.5.1985 at about 3.30 AM, two persons came to the house of the prosecutrix PW1 Rampyari and out of these two persons, one of them was accused appellant Shoukat as his name was found in the report Ex.P/1.
2. That they asked prosecutrix to go with them for delivery case near the house of Mokli and thus, on this pretext, she became ready and went with them.
3. That when they were going, the accused appellant Shoukal, seeing lonely place, caught hold hands of the prosecutrix and tried to molest her, which she resisted and in doing so, she received injuries and her clothes were also torn and she was also beaten by the accused appellant Shoukat.
4. That on making hue and cry by the prosecutrix, many people including some women reached on the spot and seeing them, accused appellant Shoukat and another accused ran away from the scene and many people tried to apprehend them, but they could not succeed.
5. That in the report Ex.P/1, name of the accused appellant Harun was not mentioned nor his description was given.
11. Now, the statement of the prosecutrix PW1 Rampyari has to be examined.
12. Before examining the evidence of the prosecutrix PW1 Rampyari, something should be said about the evidence of the prosecutrix in rape and abduction cases and whether corroboration is necessary.
Evidence of prosecutrix
13. The main evidence in all such cases is that of the victim herself. In practice a conviction for rape and abduction almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned, the other evidence being merely corroborative, it is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart form the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. Corroboration may be by facts and circumstances.
14. It is well settled by a catena of decisions of the Hon'ble Supreme Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for a conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. Substantial corroboration of the prosecutrix's version cannot be insisted upon in all cases of rape.
15. Conviction on a charge of abduction on the uncorroborated testimony of the prosecutrix is legal, the proseculrix being not an accomplice, as held by the Hon'ble Supreme Court in Madho Ram v. State of U.P. (1).
16. Keeping the above principles in mind, the statement of the prosecutrix PW1 Rampyari is being examined.
17. The prosecutrix Rampyari was examined in Court as PW1 and she has supported her version given by her in the report Ex.P/1. She has further stated that her hand was caughthold by accused appellant Shoukat and she was put on the ground by accused appellant Shoukat and he snatched her saree, as a result of which, it torn and after undressing himself, he fell on her and then she made hue and cry, but he put his hand on her mouth and he also beat her and thereafter, on hearing her cries, many people including some women came there and seeing them, accused appellant Shoukat and another accused ran away from the scene. She has further stated that accused appellant Shoukat also lifted her patticoat and during struggle, her patticoal was torn and her bangles were also broken. She has further stated that out of womer reached on the spot, one of them was Mst. Kalsum and she did not know the names of rest ladies. She has further stated that she made the report Ex.P/1 to the Chief Medical & Health Officer, Nagaur through PW5 Dr. S.S. Purohit, who forwarded the same to the Chief Medical & Health Officer, Nagaur and, thereafter, it was sent to the S.H.O., Police Station Nagaur.
She was cross-examination at length and in cross-examination, she has admitted the following facts:-
1. That Mokli, who was Dai by profession, is known to her for the last 2-3 months.
2. That she did not know Yusuf and she also did not know whether any case is going against accused appellant Shoukat for beating Yusuf.
3. That accused appellant Shoukat came in hospital once or twice, as his Bhabhi is daughter of one of the compounders of the Hospital and once she went to his Bhabhi's house for delivery case.
4. That it is wrong to say that report Ex.P/2 has been lodged by her subsequently, as per the instructions of Yusuf.
5. That no identification parade was got conducted to identify the accused Harun.
18. PW4 Babu Khan is the motbir witness, who states that on the spot broken bangles of the prosecutrix were recovered by the police through fard Ex.P/3.
19. PW5 Dr. S.S. Purohit, who was Medical Officer & Incharge of the Primary Health Centre, Basni and to whom the report Ex.P/1 was first given by the prosecutrix PW1 Rampyari, states that on the relevant day at about 4.30 AM, prosecutrix PW1 Rampyari came to his house and on being asked, she narrated the whole story to him. He has further stated that he forwarded the report Ex.P/1 to the Chief Medical & Health Officer, Nagaur and then, it was sent to the Police Station Nagaur. He has proved his endorsement on the report Ex.P/1.
20. Thus, from the statement of PW5 Dr. S.S. Purohit, the fact that just after the occurrence, the prosecutrix narrated the whole story to her superior officer PW5 Dr. S.S. Purohit is well proved. In other words, within one hour of the alleged occurrence, she narrated the whole incident to PW5 Dr. S.S. Purohit and also made report Ex.P/1.
21. PW7 Ugam Singh, who was S.H.O., Police Station Nagaur at the relevant lime, states that report Ex.P/1 was produced before him by the prosecutrix PW1 Rampyari on which he registered the case and started investigation and during investigation, through fard Ex.P/4, clothes of the prosecutrix were seized. In cross-examination, this witness has admitted that name of the accused appellant Harun was not mentioned in the report Ex.P/1 and he recorded the statement of the prosecutrix PW1 Rampyari on 27.5.1985 and in that statement also, she did not mention the name of accused appellant Harun nor his description was disclosed by her. He has further admitted that he also recorded her statement on 30.5.1985, where she disclosed the name of the accused appellant Harun. He has further admitted that no identification parade was got conducted by him to identify the accused appellant Harun.
22. On the above evidence, the learned Addl. Sessions Judge, Nagaur convicted the accused appellants for the offence under Section 366 and 354 IPC instead of 376/511 IPC and now it.is to be seen whether the findings of conviction for the said offences recorded by the learned Addl. Sessions Judge, Nagaur are liable to be confirmed or not.
23. In order to bring home the charge under Section 366 IPC the prosecution must establish:-
(a) that the accused induced the complainant to go from any place;
(b) that such inducement was by deceitful means;
(c) that such abduction took place with the intent that the complainant may be seduced to illicit intercourse; and
(d) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction.
24. It may be stated here that mere abduction without criminal intent of one of the kinds, specified in the IPC is not recognized as an offence. Thus, purpose of abduction must be established.
25. It may further be staled here that if the girl was of 18 years or above, she could only be abducted and not kidnapped and since in the present case, the prosecutrix PW1 Rampyari, who was Nurse (ANM) in the Primary Health Centre, Basni, was about 35 years of age at the time of alleged occurrence, therefore, present case would be a case of abduction, if found proved.
26. Abduction implies forcible compulsion or inducement by deceitful means.
27. The intention of the accused is the basis and the gravemen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established the offence is complete, whether or not the accused succeeded in effecting his purpose.
28. In the light of the above observations, the present case is being examined. The case of accused appellant Shoukat
29. In my considered opinion, from the evidence on record, the facts that on 27.5.85 at about 3.30 AM, the accused appellant Shoukat alongwith another accused person went to the house of the prosecutrix PW1 Rampyari and by deceitful means i.e. by falsely saying that there was a case of delivery, he induced the prosecutrix PW1 Rampyari to go with him from her house and when she accompanied him, on the way, the accused appellant Shoukat seeing lonely place tried to molest her by putting her on the ground and he also beat her, as a result of which, she received injuries on her person and during struggle, her clothes were torn and bangles were also broken and on her making hue and cry, many people including some women reached there and seeing them, accused appellant Shoukat ran away from the scene and thereafter, within one hour of the occurrence, prosecutrix PW1 Rampyari narrated the whole story to her superior officer PW5 Dr. S.S. Purohit and lodged the report Ex.P/1, are Well proved.
30. So far as the statement of prosecutrix PW1 Rampyari is concerned, the same by itself appears to be straight forward, reliable and trustworthy and inspires confidence and does not suffer from any material infirmity. Her statement is fully supported by the medical evidence and by the evidence of her superior officer PW5 Dr. S.S. Purohit and by some other factors such as her clothes were torn, her bangles were broken etc. From her statement, it cannot be gathered or inferred that she is telling lie or falsely implicating the accused appellant Shoukat.
31. Though conviction on a charge of abduction on the uncorroborated testimony of the prosecutrix is legal, as held by the Hon'ble Supreme Court in Madho Ram's case (supra), but, in the present case, as discussed above, the testimony of the prosecutrix PW1 Rampyari finds corroboration not only from the medical evidence, but also from other oral as well as circumstantial evidence. Therefore, in all respects, statement of the prosecutrix PW1 Rampyari is reliable and trustworthy and the learned trial Judge has rightly believed her statement so far as the accused appellant Shoukat is concerned.
32. From the evidence on record, it clearly appears that the prosecution has proved its case beyond all reasonable doubt against the accused appellant Shoukat, as all the ingredients, which have been mentioned above to prove the offence under Section 366 IPC, have been proved by the prosecution in the manner that the accused appellant Shoukat first induced the prosecutrix PW1 Rampyari by deceitful means that there was a Jappa, but actually there was no such Jappa and relying on the statement of the accused appellant Shoukal, prosecutrix accompanied him in the night and when they were going, on the way, the accused appellant, seeing lonely place, outraged her modesty and thus, it is not a mere case of abduction, but purpose for which abduction was done by the accused appellant has also been proved. In these circumstances, the findings of the learned trial Judge convicting the accused appellant Shoukat for the offence under Section 366 and 354 IPC are liable to be confirmed.
33. Hence, the argument that no case for the offence under Section 366 IPC is made out against the accused appellant Shoukat stands rejected.
34. So far as the non-production of some of ladies, who assembled on the spot is concerned, it would not affect the statement of the prosecutrix PW1 Rampyari, inasmuch as just after the occurrence, she narrated the whole story to her superior officer PW5 Dr. S.S. Purohit and he has been produced and in these circumstances, failure of the prosecution to produce some of the ladies, who assembled there, would not be fatal, especially in view of the other remaining reliable evidence on record,
35. So far as non-production of Mst. Kalsam is concerned, it would also not affect the case of the prosecutrix PW1 Rampyari, as her statement is found reliable and trustworthy. However, from the record, it appears that Mst. Kalsam has been produced in defence as DW2 and it appears that she has been won over by the accused appellant Shoukat.
36. For the reasons slated above, the findings of the learned Addl. Sessions Judge by which he convicted the accused appellant Shoukat for the offence under Section 366 and 354 IPC are liable to be confirmed as they are based on correct appreciation of evidence and this Court does not want to take a different view in the matter and the appeal of the accused appellant Shoukat against conviction is liable to be dismissed.
The case of accused appellant Harun
37. So far as the case of accused appellant Harun is concerned, his name was not mentioned in the report Ex.P/1, which was lodged on 27.5.1985. In another report Ex.P/2, which was lodged on 30.5.1985, his name was mentioned. PW7 Ugam Singh, who was SHO, Police Station Nagaur at the relevant time, has admitted that no identification parade was got conducted to identify this accused appellant Harun. In these circumstances, his presence on the scene becomes doubtful and he is entitled to benefit of doubt.
38. Thus, the findings of the learned Addl. Sessions Judge convicting accused appellant Harun for the offence under Sections 366 and 354 IPC are liable to be set aside and he is entitled to acquittal, after giving benefit of doubt.
On point of sentence
39. The accused appellant Shoukat has remained in PC and JC for about 28 days and now the question arises whether in a case, which is found proved for the offence under Sections 366 and 354 IPC, awarding of sentence for the said period would meet the ends of justice or not, especially keeping in mind the fact that incident took place on 27.5.1985 and now about 16 years have elapsed.
40. The accused appellant Shoukat has been convicted for the offence under Section 366 and 354 IPC. Had there been a simple case of conviction for the offence under Section 354 IPC, the request of the learned counsel for the accused appellant for sentencing him for the period already undergone by him would have been considered, but the case against the accused appellant Shoukat for the offence under Section 366 IPC is well proved, as he by deceatful means took the prosecutrix PW1 Rampyari, who was Nurse (ANM) in the Primary Health Centre, Basni, from her house and then, he outraged her modesty.
41. The Hon'ble Supreme Court in Devki v. State of Haryana (2), has held that benefit of probation should not be given to the abductor. Therefore, no question of granting benefit of probation to the accused appellant Shoukat arises.
42. The accused appellant Shoukat was sentenced to undergo four years RI for the offence under Section 366 IPC.
43. It may be stated above here that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercise along accepted judicial lines, an appellate court should not interfere, but in the present case. The fact that incident took place on 27.5.1985 and since the about 16 years have elapsed should also be kept in mind.
44. Looking to the entire facts and circumstances of the case and keeping in mind the fact that incident took place on 27.5.1985 and now about 16 years have elapsed, the sentence of four years for the offence under Section 366 IPC today appears to be excessive one and on this court the accused appellant Shoukat is entitled to reduction in sentence and thus, in my considered opinion, if the accused appellant Shoukat is sentenced to undergo one year RI instead of four years RI for the offence under Section 366 IPC and six months RI instead of two years RI for the offence under Section 354 IPC, it would meet the ends of justice.
In the result:-
1. The appeal filed by the accused appellant Harun is allowed and the judgment and order of sentence dated 16.2.1987 passed by the learned Addl. Sessions Judge, Nagaur so far as they relate to him are set aside and he is acquitted of all the charges framed against him.
Since accused appellant Harun is on bail, he need not surrender and his bail bonds are hereby cancelled.
2. The appeal filed by the accused appellant Shoukat against conviction for the offence under Section 366 and 354 IPC is dismissed. However, on point of sentence his appeal is partly allowed in the manner that he is sentenced to undergo one year Rl and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo two months RI for the offence under Section 366 IPC and six months RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo two months RI for the offence under Section 354 IPC and both the substantive sentences shall run concurrently. The order of sentence dated 16.2.1987 passed by the learned Addl. Sessions Judge, Nagaur stands modified accordingly.
The accused appellant Shoukat must surrender before the trial court to undergo the balance period of sentence.