- (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. 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 and 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.
(3.) 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.;