- (1.) Aggrieved by the judgment dated 22-3-2006, passed by Special Judge, SC/ST (Prevention of Atrocities) Cases Sikar, both the appellants, Bhura Angrej @ Siraj Khan ('A-1', for short) and Sethi @ Mohammed Sharif ('A-2', for short) have approached this Court. The appellants have been convicted and sentenced as under:- U/s.376 (2) (g) IPC: To suffer rigorous imprisonment for ten years and fine of Rs.5000/-, in default to further suffer simple imprisonment for five months. U/s.363 IPC: To suffer rigorous imprisonment for five years and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. U/s.366 IPC: To suffer rigorous imprisonment for five years and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. U/s.3 (i) (xii) SC/ST (PA) Act: To suffer rigorous imprisonment for five years and fine of Rs.1000/-, in default to further suffer simple imprisonment for two months. The substantive sentences were ordered to run concurrently.
(2.) In brief the facts of the case are that on 17-4-2005, the complainant Sita Ram (P.W.11) lodged a report at Police Station Kotwali, Sikar, wherein he claimed that on 16-4-2005, his daughter, Munni, aged 16 years, had left the house at 10.00 A.M. to answer the call of nature. However, she did not return to the house. He searched for his daughter in the neighbourhood. He was informed that A-1 and A-2 had kidnapped his daughter. He further claimed that his daughter had taken away Rs.13,000/-, four gold rings, two pairs of earring, two pairs of anklets (Paijeb), two nose-ring, and forehead ornament (Teeka), which he had prepared for her marriage. On the basis of this report, the police chalked out a formal FIR, for the offences under sections 363, 366, 380 IPC, and Section 3 of SC/ST (PA) Act. Both the appellants were arrested on 3-6-2005; they are behind the bars ever since then. The police eventually submitted a charge-sheet against the appellants for the offences under sections 363, 366, 376 (2)(g), 380 IPC and Sec.3 (i)(xii) SC/St (PA) Act. In order to buttress its case, the prosecution examined as many as thirteen witnesses, and exhibited twenty-one documents. Although the defence has not examined any witness, but it did exhibit eight documents. After hearing both the parties, and having gone through the oral and documentary evidence, the learned trial Judge convicted and sentenced the appellants as aforementioned.
(3.) Mr. Rohan Jain, the learned counsel for the appellants, has raised following contentions: Firstly, a love affair between A-2 and the prosecutrix an affair between members of two different communities has been given a colour of rape. Secondly, the learned trial court has failed to appreciate the evidence in proper perspective. Thirdly, according to Mukesh (P.W.4) and Lal Chand (P.W.5), two independent witnesses, the prosecutrix and A-2 were in love with each other. According to them certain photographs of the prosecutrix and A-2 were the cause of tension between the families, and became the talk of the neighbourhood. According to them even a Panchayat a meeting of elderly persons of the Communities was called; a compromise was struck between the families. It was decided that A-2 would not repeat his mistake. According to learned counsel, the learned trial Judge failed to notice the fact that both these witnesses (P.W.4) and (P.W.5) have not been declared hostile, yet both of them knocked the bottom out of the prosecution case. Fourthly, that even according to complainant, Sita Ram (P.W.11), and according to the FIR, his daughter had left the house after taking cash and jewelery. Therefore, she had left the house out of her own free will. According to Ashraf (P.W.12), the Manager of Akhtar Hotel, another independent witness, the appellants had come to his hotel with a girl. He was informed that the girl happens to be the wife of A-2. Moreover, according to him, there were no signs that the girl had been kidnapped. Although the prosecutrix claimed that she was raped in the hotel by A-2, but according to Ashraf (P.W.12) the young couple had left the hotel happily in the morning of 17-4-2005. Fifthly, the prosecutrix was major, as she was 16 years old, on the date of occurrence. This is obvious from the fact that in the FIR itself, the complainant had stated that his daughter was 16 years old. In her statement, recorded under Section 164 Cr.P.C., the prosecutrix herself claimed that she was 16 years old. It is only, subsequently, during the trial that both the complainant and the prosecutrix changed their version; suddenly they claimed that the prosecutrix was 15 years and 4 months old. However, according to Dr.Mahesh Sharma (P.W.1), and according to medical evidence, the prosecutrix was 18 years old. Therefore, the age given by the complainant, and the prosecutrix in her testimony, is contradicted by her statement recorded under section 164 Cr.P.C., and by the medical evidence. Yet, the learned trial Judge has treated the prosecutrix as a minor. Sixthly, the prosecutrix is an unreliable witness. For, in her statement under section 161 Cr.P.C, she does not utter a word about the appellant A-1, of having committed any rape upon her. It is only in her statement recorded under section 164 Cr.P.C. that for the first time she alleges that she was ravished by both the appellants. Therefore, she has improved her story from her statements under section 161 Cr.P.C. to 164 Cr.P.C. and before the trial court. Her testimony is further contradicted by the testimony of Ashraf (P.W.12), who has clearly stated that while A-2 and the prosecutrix stayed in Room No.103, A-1 stayed in Room No.101. Moreover, Raj Kumar Yadav (P.W.15), the Manager of Chetan Hotel, Jaipur, in his cross-examination admitted that only a boy and a girl had come to his hotel in the morning of 17-4-2005, and stayed in a room. Thus, according to him, A-1 did not accompany the prosecutrix and A-2. Seventhly, the testimony of prosecutrix is not corroborated by the medical evidence. According to Dr.Mahesh Sharma (P.W.1) the hymen of the prosecutrix was broken a long back, she was habitual to sexual intercourse, there were no injury on her private parts or any other part of her body. Since the prosecutrix is untrustworthy witness, therefore, the learned trial judge has erred in convicting and sentencing the appellants on the basis of her testimony. Relying on the case of Dinesh Jaiswal Vs. State of M.P., 2010 3 SCC 232, the learned counsel has contended that though the evidence of the prosecutrix is liable to be believed, but there is no universal principle that the prosecutrix must be believed irrespective of improbabilities in her testimony.;