Rajasthan High Court - Jodhpur
Mohammed Safique @ Iqbal vs State on 21 August, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 170 / 1990
Mohammed Safique @ Iqbal s/o Shri Kabir Ahmed, by Caste
Musalman, r/o Gold Nadi, Jodhpur.
----Appellant
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Manoj Pareek.
For Respondent(s) : Mr. L.R. Upadhyaya, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment Date of Judgment:_21/08/2017 By way of this appeal, the appellant herein seeks to challenge the judgment dated 31.05.1990 passed by the learned Sessions Judge, Jodhpur convicting and sentencing as follows:
Under Section 376 IPC- 7 years R.I. and a fine of Rs.50/- in default of payment of fine to further undergo 1 month's R.I. Under Section 328 IPC- 3 years R.I. and a fine of Rs.50/- in default of payment of fine to further undergo 1 month's R.I. Under Section 509 IPC- 6 months' R.I. All the sentences were directed to run concurrently.
(2 of 10) [CRLA-170/1990] Facts in brief are that one Champa Lal submitted a complaint to the Superintendent of Police, Jodhpur on 31.10.1987. It was alleged in the complaint that he was living with his wife and four children at the village Chokha. Dr. Iqbal, who ran a clinic in Cheerghar, used to visit their village for treatment of the villagers. The complainant alleged that he had gone out about six months ago when his wife suffered high fever. Dr. Iqbal was called to his house and gave some injection to his wife under the pretext of treating her fever and thereby, she became unconscious. While she was unconscious, Dr. Iqbal allegedly ravished the lady. When she regained senses, she noticed that her clothes were in a disheveled condition and her private parts were stained with semen. Her petticoat was also stained by semen like spots. She became crest fallen and enquired from Dr. Iqbal as to the cause of her condition. He threatened that her nude snaps had been taken by him in the Camera he was carrying and would be made public in case she divulged the incident to anyone. His wife became terrified because of the threats given by Dr. Iqbal and did not disclose the incident to the complainant. Thereafter, Dr. Iqbal used to frequent the complainant's house in his absence and indulged in forcible sexual relations with his wife under the threat of revealing her obscene pictures. On 12.10.1987, his wife was going to her maternal home and was waiting for a bus at Soorsagar. At that time, Dr. Iqbal came on a motorcycle and tried to take her away. In the meantime, the city-bus arrived and she escaped by boarding it. Being fed up by her continued sexual exploitation, his wife revealed the entire set of events to Champalal who went to (3 of 10) [CRLA-170/1990] the clinic of Dr. Iqbal and tried to dissuade him from continuing his immoral acts but he too was threatened with dire consequence. The complainant became mentally disturbed because of these happenings and both, he and his wife, were led to the brink of suicide. It was further alleged that earlier also, the doctor had indulged in similar immoral acts with other women in the village on which, the public had thrashed him. On the basis of this report, an FIR was registered at the Police Station Pratap Nagar for the offences under Sections 376, 328 and 509 IPC and investigation commenced. After investigation, a charge-sheet was filed against the appellant for the offences mentioned above. The case was committed to the Court of Sessions Judge, Jodhpur where charges were framed against the appellant who pleaded not guilty and claimed trial. The prosecution examined 12 witnesses in support of its case. The accused, in his statement recorded under Section 313 Cr.P.C., denied the prosecution allegations and claimed that he had been falsely implicated in the case. However, he did not lead any evidence in defence. The learned trial court, upon conclusion of trial, convicted and sentenced the appellant in the above mentioned terms. Hence, this appeal.
The gist of testimony of four material prosecution witnesses PW-2 Devaram, PW-5 Hemaram, PW-7 prosecutrix Smt. 'Y' and PW-9 Champalal (the first informant) is noted hereinbelow for the sake of ready reference:
PW-2 Devaram is the real brother of first informant Champalal. He stated that Champalal assaulted his wife (the prosecutrix). On inquiry, Champalal disclosed that Dr. Iqbal had (4 of 10) [CRLA-170/1990] indulged in immoral activity with the woman and that he had taken her indecent snaps as well. On this, the witness advised Champalal that his wife was not at fault and should not be assaulted. In cross-examination, the witness admitted that the house of Champalal and his house are adjacent and if anybody raises a hue and cry from the Champalal's house, sound would easily carry to his house. He also stated that Champalal was having three children his eldest son was aged about 13 years and the youngest daughter was about 5 years old. He further admitted that his wife and Champalal's wife regularly went together for farming activity. The indecent obscene photographs were demanded from the accused who refused to part with them.
The witness Hemaram is the nephew of Champalal. He stated that Champalal's wife fell ill and requested him to summon Dr. Safique for her treatment. He approached Dr. Safique and requested him to visit Champalal's house. On the next day, he met his aunt and asked whether the doctor had visited or not. On 12.10.1987, he saw a quarrel taking place between his aunt and his uncle on which, he made an inquiry. His aunt complained that Dr. Iqbal had indulged in immoral acts with her. On further inquiry, she admitted that she did not complain of these incidents to anybody. On the next day, the doctor was called to their house.
His uncle confronted the doctor with these allegations but he bluntly denied the same. His aunt gave lathi blows to the doctor who thereafter confessed his guilt. The doctor also offered that the complainant may use his wife for sexual acts by way of revenge.
The most important and material witness of prosecution is (5 of 10) [CRLA-170/1990] none other than the prosecutrix (PW-7) Smt. 'Y'. She was 30 years old at the time of incident and was having three children the eldest being 13 years of age. She alleged that she called the appellant to visit her house for treating her fever. The appellant came to her house in the afternoon, checked her pulse and then gave her some tablets to bring down the fever and also injected her with some medicine. After this, she lost consciousness and taking advantage of her condition, the doctor ravished her sexually. When she regained senses, she noticed that her clothes were in a disheveled condition and the doctor was sitting nearby. She confronted the doctor with these circumstances on which, he admitted that he had established physical relations with her and had taken her pictures in compromising condition by the camera which he was carrying. She was threatened that in case, she disclosed about the incident to anybody, her indecent photographs would be made public and she was threatened that she would be killed by administering a poisonous injection. A month later, the doctor again came to her house and demanded to have intercourse. She tried to raise a hue and cry on which the accused again threatened her with the disclosure of her indecent photographs. About one and half month later, the doctor again came to her house and tried to force her into having sexual relations. When she threatened that she would shout, the accused returned. When she was going to her maternal house during Navratra and was standing at Masooria, the doctor came on a motorcycle and asked her to accompany him and indulge in sexual activity. She escaped by boarding the city-bus and went to her (6 of 10) [CRLA-170/1990] father's house. On the next day, she came back to her village and found her husband present at the house. She became highly perturbed by the events and disclosed the same to her husband who assaulted her. Thereafter, doctor was called and was confronted with his misdeeds but he denied any such happening. In cross examination, the witness admitted that she was familiar with the appellant right from her marriage. Before the incident, she used to go to the town for getting herself treated by the appellant. The First incident of rape occurred during first home visit of the appellant. After the act, she washed her clothes which had been stained with semen. The accused showed her the photographs on the third occasion. Her husband was the first person in whom she confided regarding the alleged incident of her sexual exploitation. She did not tell of these incidents to anybody at her father's house.
The first informant (PW-9) Champalal, more or less, gave evidence in consonance with the allegations set out in the FIR.
The trial court, upon conclusion of trial, proceeded to rely upon the evidence of the prosecutrix and the first informant and finding the case to be proved beyond all manner of doubt, convicted and sentenced the appellant as above by the impugned judgment dated 31.05.1990. Being aggrieved, the appellant has preferred the instant appeal.
Shri Manoj Pareek, learned counsel representing the appellant vehemently urged that the evidence of the prosecutrix is highly vacillating doubtful and unbelievable. The FIR was lodged after significant delay. The prosecutrix kept silent regarding her (7 of 10) [CRLA-170/1990] alleged sexual exploitation by the accused and did not reveal the alleged happenings to either her husband or her maternal relatives despite having numerous opportunities to do so. With these contentions, learned counsel urged that the appellant deserves to be acquitted of the charges.
Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the appellant's counsel and urged that the prosecutrix is a rustic villager. There was no occasion for her to falsely implicate the accused for the heinous offence of rape while putting her own reputation in the society at stake. He thus craved for rejection of the appeal and prayed that impugned judgment be upheld.
I have given my thoughtful consideration to the arguments advanced by the learned counsel representing the appellant the learned Public Prosecutor and have gone through the impugned judgment and have appreciated the entire evidence and the record.
The FIR was lodged after significant delay of six months. The prosecutrix claims to have kept silent on the pretext that the accused had snapped her indecent pictures but the said exercise appears to be totally cooked because neither any such pictures nor the camera allegedly used to snap them was recovered during investigation. The lady admitted in her cross-examination that the accused showed her the pictures during the third visit. In this background, when indecent pictures were not even shown to the lady, there was no occasion for her to believe the threat given by the accused during the second act of sexual indulgence if at all, (8 of 10) [CRLA-170/1990] she had been ravished against her desire. The prosecutrix alleged in her testimony that the accused showed her a camera just after the first incident and threatened her that he had snapped her indecent photographs therein. However significantly, this allegation is missing from the highly belated FIR (Ex.P/6) which was lodged after nearly six months of the alleged incident of rape. This amounts to a material omission. The accused had been called from Jodhpur to treat the prosecutrix at her village. He had no means of knowing that the prosecutrix would be all alone in the house and thus he would get a chance to assault her sexually or take her pictures. Thus, there was no occasion for the accused to have carried a camera with himself. The narration made by the prosecutrix regarding the manner in which the incident happened is in itself doubtful. The prosecutrix claims to suffering from a high grade fever of such intensity that Hema Ram nephew of the first informant had to be sent to bring the doctor from Jodhpur for her treatment. Had her condition been so critical, it is unbelievable that none of her matrimonial relatives viz. Hema Ram or Deva Ram (brother of Chmpalal who lives in the adjoining house) or Deva Ram's wife would stay by the side of the prosecutrix to attend her and would leave her all alone with the doctor. The chain of events narrated by the prosecutrix in her evidence is totally against normal human conduct. The Doctor is alleged to have stayed back in the home of the prosecutrix for hours together while she was unconscious. Thus, her children also must have noticed something unusual and would have raised an alarm if any untoward incident had happened. Further, there is yet another (9 of 10) [CRLA-170/1990] significant circumstance which makes the entire prosecution story doubtful. The prosecutrix alleged that after the first incident of rape, the accused approached her on no less than three occasions and repeatedly tried to force her into establishing sexual relations. He even showed the indecent photographs to the prosecutrix on the third occasion. Nonetheless, despite all these alleged attempts of made by the appellant for indulging into sexual intercourse under the grave threat, the prosecutrix did not pertinently state that accused succeeded in establishing sexual relations with her after the first incident. Had there been an iota of truth in the prosecution case that the accused was having indecent photographs of the prosecutrix who allegedly felt threatened by these pictures then, nothing could prevent the accused from forcing the prosecutrix into establishing sexual relations if he so desired. In these circumstances, this Court is of the view that the statement of the prosecutrix that the accused threatened her and subjected her to forcible sexual relations against her desire does not inspire confidence. In all probabilities, the relations between the prosecutrix and the accused, if any, were consensual. When the beans were spilt out in the open, the husband of the prosecutrix assaulted her. The assault was seen by the brother of the first informant who intervened and called the appellant to their house. If at all, there was any truth in the allegation that the accused had subjected the prosecutrix to forcible sexual intercourse then, there was no occasion for the complainant to have called the accused to his house and rather, the matter should have been taken to the police immediately. It is alleged in the FIR (10 of 10) [CRLA-170/1990] that even after the first incident, the accused used to visit the house of the complainant in his absence and tried to pressurize the prosecutrix into having sexual intercourse repeatedly. The frequent clandestine visits of the accused at the house of the complainant even after the first incident is yet another circumstance which goes to indicate that the visits were in all probability on invitation sent by the prosecutrix.
As a consequence, I am of the view that the evidence of the prosecutrix is not trustworthy and cannot be relied upon for holding the appellant guilty of the offence under Section 376 IPC. Neither the indecent photographs of the prosecutrix nor the camera used to take the pictures was recovered during investigation and thus, the charge under Section 384 IPC is also unsustainable. Likewise, the charge under Section 509 IPC can also not be sustained because the Court has already held that the relations between the prosecutrix and the appellant were consensual.
In view of the above discussion, the appeal merits acceptance and the conviction and sentences awarded to the appellant by the trial court deserve to be set aside. As an upshot, the appeal succeeds; the judgment dated 31.05.1990 passed by the learned Sessions Judge, Jodhpur in Sessions Case No.37/1988 is set aside and the appellant is acquitted of all the charges. He is on bail. He need not surrender. His bail bonds are discharged.
Record be sent back forthwith.
(SANDEEP MEHTA)J. Tikam Daiya.