Rajasthan High Court - Jaipur
Farookh Chisty vs State on 10 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T D.B. CRIMINAL APPEAL No.657/2007. Farookh Chisty Vs. State of Rajasthan Date of Judgment : September 10, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MRS.JUSTICE NISHA GUPTA Shri Vinaypal Yadav for accused-appellant. Shri Javed Choudhary, Public Prosecutor for the State.
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1) This appeal is directed against the judgment dated 1/2/2007 passed by learned Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions Case No.91/2002(110/1992) whereby, the accused-appellant was convicted and sentenced, as under:-
- convicted for offence under Section 376 IPC and sentenced to life imprisonment with fine of Rs.1,000/- and in default of making payment thereof, he was sentenced to undergo further simple imprisonment for six months,
- convicted for offence under Section 376/120B IPC and sentenced to life imprisonment with fine of Rs.1,000/- and in defualt of making payment thereof, he was sentenced to undergo further simple imprisonment for six months.
- Both the sentences were ordered to run concurrently.
2) Facts of the case are that a written complaint was submitted by some persons to Shri Mahendra Nath Dhawan, the then Superintendent of Police, who then entrusted the investigation to Shri Hariprasad Sharma, the then Deputy Superintendent of Police, Ajmer on the basis of secret information received by the police for determination of sexual harassment to girls and blackmailing. Police after investigation filed charge-sheet No.140/92 against eight accused namely; Nasim alias Tarjon, Ishrat, Moijullah @Puttan, Parvez Ansari, Harish Tolani, Kailash Soni, Purshottam @Babli and Farookh Chisty, the present accused appellant. Another charge sheet No.140/92A was filed against accused Mahesh Ludhani, charge sheet No.140/92B was filed against accused Anwar Chisti, charge sheet No.140/92C was filed against accused Shamshuddin, charge sheet No.140/92D was filed against accused Saiyyed Jahur Chisty and charge sheet No.140/92E was filed against accused Jamir, Salim Chisti, Sohelgani, Almas Maharaj @Babli Nafis Chisty and Iqbal Ajmeri. Since some of the accused absconded therefore their trial was separated but ultimately trial against eight accused proceeded. Prosecution produced total 148 witnesses and exhibited 175 documents apart from 20 articles and defence produced 26 documents. 3) When all the accused were examined under Section 313 Cr.P.C. at that stage, a plea was set up on behalf of the accused-appellant that he was suffering from some mental ailment and therefore vide order dated 18/6/1997 his trial was separated from rest of the accused. While co-accused Moijullah @Puttan and Ishrat Ali were convicted for offences u/Ss.120B, 376/120B and 292/120B read with Section 376 IPC, co-accused Parvez Ansari, Harish Tolani, Kailash Soni, Shamshuddin @Meradonoa and Saiyyed Anwar Chisty were convicted for offences u/Ss.120B, 376/120B and 292/120B IPC. However, all of the accused were convicted for substantive offence u/Ss.376 and 376/120B IPC and were sentenced to life imprisonment. They preferred appeal before this Court, which was decided vide judgment dated 20/7/2001 in Harish Tolani & Ors. Vs. The State of Rajasthan : 2002(2) Cr.L.R. (Raj.) 1214. This Court acquitted accused Parvez Ansari, Kailash Soni, Mahesh Ludhani and Harish Tolani from charge of offence u/Ss.120B, 376/120B and 292/120B IPC and accused Moijullah @Puttan, Ishrat Ali, Anwar Chisty and Shamshuddin @Meradona from offence u/Ss.120B, 292/120B and 292 IPC, whereas the conviction of accused Moijullah @Puttan and Ishrat Ali for substantive offence u/Ss.376 and 376/120B IPC and of accused Anwar Chisty and Shamshuddin @Meradona for offence u/S.376/120B IPC was upheld. Those accused namely; Moijullah @Puttan, Ishrat Ali, Anwar Chisty and Shamshuddin @Meradona preferred appeal before the Supreme Court on grant of leave. The Supreme Court vide its judgment passed in Moijullah @Puttan Vs. State of Rajasthan and three other appeals reported in 2004 Cr.L.R. (SC) 259, while upholding their conviction for substantive offence u/Ss.376 and 376/120B IPC, reduced their sentence of life imprisonoment to ten years rigorous imprisonment.
4) Shri Vinay Pal Yadav, learned counsel for the accused-appellant argued that all the prosecution witnesses except Sangeeta (PW15), Madhubala (PW17), Archna Chaudhary (PW34) and Chavidhaka (PW53), have turned hostile and the learned trial court based the conviction of the accused appellant only on the testimony of Madhubala (PW17), whereas Archna Chaudhary (PW34) and Chavidhaka (PW53) does not allege allegation of rape against the accused appellant. Sangeeta (PW15) stated in her statement that it was accused Nafees, who committed rape upon her and not the present accused-appellant. Similarly, Madhubala (PW17) also stated in her statement u/S.161 Cr.P.C. that the present accused-appellant may not be there on the date of alleged incident. Accused Ishrat committed rape upon her. Her statement is full of contradictions when on one hand, she stated the year of incident was 1990 and on the other, she stated that she did not know the accused prior to 1991. She stated that she did not receive any injury nor any of her clothe was torn. Learned counsel for the appellant submitted that conviction and sentence of the accused appellant therefore for the substantive offence u/Ss.376 and 376/120B IPC is not sustainable on the testimony of these witnesses.
5) Learned counsel for the accused-appellant has though assailed the judgment on merit and has made submissions in detail but ultimately submitted that the accused-appellant was facing trial jointly with the other co-accused on the same set of evidence of Sangeeta (PW15) and Madhubala (PW17). When sentence of other co-accused for the substantive offence u/Ss.376 and 376/120B IPC has been reduced by the Hon'ble Supreme Court from life imprisonment to ten years, the present accused-appellant atleast should be sentenced to the period already undergone by him.
6) Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that conviction of the accused-appellant is not liable to be interfered with because it is founded on the same evidence on which conviction of Moijullah @Puttan and Ishrat Ali for substantive offence u/Ss.376 and 376/120B IPC and of accused Anwar Chisty and Shamshuddin @Meradona for offence u/S.376/120B IPC was upheld by this Court as well as by the Supreme Court. Case of the accused-appellant falls within the category of those four co-accused namely; Moijullah @Puttan, Ishrat Ali, Anwar Chisty and Shamshuddin @Meradona, whose sentence for the substantive offence u/Ss.376 and 376/120B IPC has been upheld not only by this Court but also by the Supreme Court. Therefore, appeal be dismissed. Learned Public Prosecutor however did not seriously oppose the reduction of sentence of the accused-appellant from life imprisonment to the period already undergone by him in view of the fact that the Supreme Court in the case of Moijullah @Puttan supra, reduced the sentence of life imprisonment awarded to co-accused to rigorous imprisonment of ten years for the substantive offence u/Ss.376 and 376/120B IPC.
7) We have given our anxious consideration to the rival submissions and perused the material available on record.
8) Perusal of the impugned judgment especially the testimony of Sangeeta (PW15) and Madhubala (PW17), reveals that while Renu Tak (PW16), Pushpa Sant (PW18), Pushpa (PW23), Reshma Ali (PW25), Archna Chaudhary (PW34), Rakhi (PW36), Ranu (PW37), Beena (PW40), Shail Bala (PW41), Monika Jain (PW43), Sunita Sharma (PW44), Namita Sharma (PW46) and Chavidhaka (PW53) have turned hostile, Sangeeta (PW15) has not made any allegation of rape against the accused-appellant and the conviction of the accused-appellant was mainly founded on the testimony of Madhubala (PW17). Contention of the learned counsel for the accused-appellant is that since the sentence of the other co-accused agaisnt whom many of the witnesses have supported the allegation of rape and also of taking their photographs for the purpose of blackmailing, based on same set of evidence, has been reduced by the Supreme Court from life imprisonment to ten years, the present accused-appellant is entitled atleast to be sentenced to the period already undergone by him.
9) Considering allegation against the appellant and that on evidence of the same witnesses, conviction of four accused namely; Moijullah @Puttan, Ishrat Ali, Anwar Chisty and Shamshuddin @Meradona for the substantive offence u/Ss.376 and 376/120B IPC has been upheld by the Supreme Court in Moijullah @Puttan supra, we are not inclined to interfere with the conviction of the present accused appellant for substantive offence u/Ss.376 and 376/120B IPC. However, keeping in view the fact that the accused-appellant has served out the sentence of more than 11 years and 9 months computing from the date of his arrest and the Supreme Court in Moijullah @Puttan supra has reduced the sentence of life imprisonment of the co-accused to ten years, we are persuaded to reduce the sentence of the accused-appellant Farookh Chisty from life imprisonment to the period already undergone by him.
10) The appeal therefore on the question of conviction of accused appellant for the substantive offence u/Ss.376 and 376/120B IPC is dismissed. However, it is allowed in respect of his sentence reducing the same from life imprisonment to the period already undergone by him. The appeal thus is allowed in part.
11) While conviction of accused-appellant is upheld for offence u/Ss.376 and 376/120B IPC, however, he is sentenced to the period already undergone by him. If not required to be detained in connection with any offence, he be released forthwith.
(NISHA GUPTA), J. (MOHAMMAD RAFIQ), J. anil/1
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW