Allowed

Luna Khan and Ors. v. State

Rajasthan HC13 Sept 2017CRLA/463/2014

Case brief

AI extract

What is this about?

In an appeal against conviction for rape and sexual assault under POCSO and IPC, the High Court of Rajasthan upheld the trial court's acquittal, finding the prosecution failed to prove the charge beyond reasonable doubt due to contradictions in victim evidence and lack of correlation with medical findings.

What did the court decide?

Acquittal of appellants. Impugned conviction judgment set aside. Appellants Amin Khan and Badami Devi released on bail.

Luna Khan and Ors. Vs State — Child Sexual Offences (POCSO) | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 593 / 2014

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Amin Khan, son of Sumar Khan by caste Musalman, resident of Gunga, Police Station Shiv, District Barmer.

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(At present lodged in Central Jail, Jodhpur)

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----Appellant

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Versus

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The State of Rajasthan. ----Respondent Connected With S.B. Criminal Appeal No. 463 / 2014 1. Luna Khan S/o Mohd. Khan, by caste Muslim, R/o Madhe Ki Dhani, P.S. Shiv, District Barmer. 2. Gazi Khan S/o Ali Khan, by caste Muslim, R/o Shiv, P.S. Shiv, district Barmer.

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Badami Devi @ Pawani W/o Channa Ram, by caste Gawariya, R/o Shiv, P.S. Shiv, district Barmer.

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(Presently lodged at sub-Jail, Balotra).

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----Appellant

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Versus State of Rajasthan. ----Respondent _____________________________________________________ For Appellant(s) : Mr. Mahesh Bora, Sr. Advocate with Mr. Arun Kumar, Mr. Suresh Kumbhat, Mr. Sanjay Mathur, Mr. Sheetal Kumbhat, Advocates.

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For Respondent(s) : Mr. O.P. Rathi, PP.

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HON'BLE MR. JUSTICE SANDEEP MEHTA Judgment

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Date of Judgment:- _13/09/2017

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These two appeals against conviction are directed against the judgment dated 29.05.2014 passed by the learned Sessions Judge, Balotra in Sessions Case No.18/2013. By the impugned judgment, the learned trial Judge, acquitted all the accused from

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(2 of 20)

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[CRLA-593/2014]

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the charges under Section 5(G) read with Section 6 and 17 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’); the charge under the SC/ST Act

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and the accused Babu Singh and Hukam Singh from the charges under Section 212 IPC and the accused Badami Devi @ Pawani

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from the charge under Section 366A IPC.

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The appe follows: Name of Accused	llants herein were Conviction for the offence	convicted and sente Sentence	nced as
Badami Devi @ Pawani	Section 366 IPC	5 years’ R.I. and Rs.5,000/- in def payment of fine to undergo 6 imprisonment	fine of ault of further months’
	Section 376/109 IPC	10 years’ R.I. and Rs.5,000/- in def payment of payment further undergo 6 imprisonment	fine of ault of of fine to months’
	Section 376/120B	10 years’ R.I. and Rs.5,000/- in def payment of payment further undergo 6 imprisonment	fine of ault of of fine to months’
Gazi Khan and Luna Khan	Section 376(2)(G) IPC	10 years R.I. and Rs.5,000/- each in d payment of fine ea directed to further un months imprisonment	fine of efault of ch was dergo 6
Amin Khan	120B IPC	10 years R.I. and Rs.5,000/- in def payment of fine to undergo 6 imprisonment	fine of ault of further months

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The sentences awarded to the accused for the different

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offences were directed to run concurrently.

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(3 of 20)

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Succinctly stated, facts essential and relevant for disposal of the instant appeal are noted hereinbelow:

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Ummeda Ram, the complainant lodged a written report at the Police Station Shiv on 25.01.2013 alleging inter alia that his minor daughter Kumari ‘P’ (hereinafter referred to as the ‘victim’) had gone to Shiv on 23.01.2013 for purchasing some household articles. She returned on 24.01.2013 and divulged that when she had gone to Shiv for purchasing the household and grocery articles, Badami Devi @ Pawani and Durga, fraudulently took her to Pawani’s dhani for staying overnight. In the night at 11 O ‘Clock’, the victim was made to accompany Pawani for attending the call of nature. Under this pretext, she was taken away from the dhani to a place where Luna Khan and Gazi Khan were waiting. These accused, caught hold of the victim and subjected her to forcible sexual assault. She shouted on which, Durga Gawarni came there and took her back to Pawani’s dhani. She was kept in the dhani for the entire night. In the morning, Pawani and Durga gave her milk cake (mawa) to eat and implored her not to disclose the incident to anybody. Pawani brought the vitim to her shop at Shiv in the next morning. When the girl did not return home in the night, her brother Bhura Ram and uncle Lalaram came down to Shiv looking for her and brought the girl back home. On returning, she told her mother of this incident. Her father Ummeda Ram was called and he filed the report with the above allegations on the basis whereof, an FIR No.14/2013 was

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(4 of 20)

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registered at the Police Station Shiv for the offences under Section 376 (2)(G) IPC, Section 3(ii)(v) of the SC/ST Act and Sections 5(G) read with Section 6 of the POCSO Act. Upon conclusion of investigation, the investigating officer filed a charge-sheet against the accused Luna Khan and Gazi Khan for the offences under Section 376(2)(G) IPC, Section 3(ii)(v) of the SC/ST Act and Section 5(G) read with Sections 6 of the POCSO Act, against the accused Amin Khan for the offence under Section 376(2)(G) read with Section 120B IPC and Section 3(i)(xii) and 3(ii)(v) of the SC/ST Act and Section 6 read with Section 17 of the POCSO Act, against the accused Badami @ Pawani for the offence under Section 366, 366A, 376(2)(G) read with Section 109 and 120B IPC and Section 6 read with Section 17 of the POCSO Act and against the accused Babu Singh and Hukam Singh for the offence under Section 212 IPC.

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The trial court framed charges against the accused persons in these very terms. They pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. The accused, upon being examined under Section 313 Cr.P.C., denied the prosecution allegations and claimed that they had been falsely implicated. One witness Salakh Khan was examined in defence. The trial court, upon concluding trial, held that the prosecutrix was above 18 years of age on the date of the alleged offence and thus acquitted the accused persons from the charge under the POCSO Act. It was further held that the offence was not perpetrated with the objective/intent of sexually

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(5 of 20)

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assaulting a person belonging to SC/ST community and thus, the accused were acquitted from the charge under Section 3 of the SC/ST Act. However, finding the evidence of the prosecutrix and other prosecution witnesses to be reliable regarding the alleged sexual assault, the learned trial court proceeded to convict and sentence the accused as stated above. Hence these appeals.

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Sarva Shri Mahesh Bora, Sr. Advocate assisted by Shri Arun Kumar; Shri Suresh Kumbhat alongwith Shri Sheetal Kumbhat, and Shri Sanjay Mathur, Advocates representing the appellants vehemently urged that the entire case of prosecution is false and fabricated. The testimony of the victim is totally unreliable, unbelievable and full of infirmities, contradictions and improbabilities. They contended that statements of the prosecution witnesses are full of improbabilities, infirmities and contradictions. They urged that the prosecutrix admitted in her cross-examination that she did not know the accused persons from before and yet the names of the accused with complete details are mentioned therein which renders the entire story false. Drawing the Court’s attention to the written report (Ex.P/4), learned defence counsel urged that specification of complete details viz. names, father’s name and place of residence of the accused persons in the written report, when admittedly the victim did not know the accused from before brings the entire prosecution case under a cloud of doubt. It was further submitted that the first informant Ummeda Ram categorically stated in his evidence that the report was scribed by the SHO and he was not

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(6 of 20)

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aware of its contents and thus the FIR is tainted. They further urged that there is a significant and grave contradiction in the sequence of events as narrated in the FIR vis-a-vis the statement

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of the victim regarding the manner in which the incident allegedly happened. They submitted that whilst in the FIR (Ex.P/4) , there was no allegation that the victim was forced on to a pick-up vehicle and subjected to rape therein but when she was examined in court, she alleged that the accused Gazi Khan and Luna Khan pulled her into the storage section of the pick-up vehicle. Pawani and Amin Khan kept sitting on the front seat and Luna khan and Gazi Khan subjected her to forcible sexual assault in the rear section of the vehicle. They urged that the rear storage section of the pick-up vehicle was made of metallic sheet and thus, it is impossible to believe that the victim would have escaped unhurt without a scratch on her body had she been subjected to gang rape by two adult males. Drawing the Court’s attention to the statement of Dr. Rita Bhatiya, the Medical Jurist who conducted medical examination of the victim, learned defence counsel urged that the doctor categorically admitted that she did not notice any injury whatsoever on the person of the victim suggestive of her having been subjected to rape. Rather, the medical officer clearly stated that the victim appeared to be habituated to sexual intercourse and no opinion could be given regarding recent sexual assault having been committed upon her. They pointed out that the victim, upon being examined in the court, categorically stated that the alleged act of sexual assault committed upon her was the

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(7 of 20)

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first instance of her being sexually penetrated and that it had never happened earlier. She further stated that she tried to resist the sexual assault by punches, kicks, etc. During the incident, her clothes got torn. Because of the forcible penetration, she started bleeding from her genitals. The accused inflicted bite marks on her chest, ears and other parts of body and she showed these marks to the doctor during medical examination. The learned defence counsel urged that all these allegations are falsified by the medical testimony which totally rules out the remotest possibility of the victim having been subjected to penetrative sexual assault because no marks of violence were observed on her body upon medical examination carried out on 28.01.2013 i.e. shortly after the alleged assault.

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It was further contended that the name of appellant Amin Khan is not mentioned in the written report and as such, the his introduction as the driver of the vehicle is a pure improvement and should be discarded outright. They further urged that the unnatural conduct of the victim after the alleged incident makes her entire testimony doubtful. She stated that after the alleged act of forcible rape by two persons, she got down from the vehicle and Pawani took her back to her dhani. She went to sleep without a bother. In the next morning, she had food at the house of Pawani and went back to the village Shiv at 12 O ‘Clock’. Her brother Bhura and uncle Lalaram met her at Shiv but she did not disclose the incident to them and casually returned back to her father’s house late in the evening. They urged that had there been an iota

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(8 of 20)

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of truth in the victim’s allegation that Pawani was instrumental in getting her raped then, after returning from the dhani, she would not have casually sat at Pawani’s shop at the village Shiv which is

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a thickly populated area and instead would have raised a hue and cry or at least, could have made an attempt to return to her village. Learned counsel Shri Bora urged that there is a great deal of doubt in the story of the prosecutrix that she actually went to the shop of Pawani for purchasing household articles/ grocery. He submits that the girl stated that she was not carrying any money with her and rather had taken 10 Kgs. Gwar with herself which she sold at Khatri’s shop and then went to Pawani’s shop. Shri Bora urged that the girl must have been familiar with the owner of the shop where she sold the Gwar. That being the situation, had she been subjected to rape with the connivance of Pawani, no sooner she was brought back to Shiv, her immediate natural reaction would have been to approach the owner of the shop where she sold the Gwar and complain about the incident or to at least seek refuge at some place other than Pawani’s shop. He thus urged that the entire story of the victim is false and fabricated. Learned counsel thus implored the Court to set aside the impugned judgment and prayed for acquittal of the appellants.

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Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the appellant’s counsel and urged that the minor victim had no cause or occasion to falsely implicate the appellants for serious charges of conspiracy and gang-rape. By initiating the prosecution, undeniably she put her own reputation

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(9 of 20)

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in the society at stake. He urged that minor contradictions appearing in the statement of the prosecutrix, rather than creating doubts make her statement all the more reliable because contradictions are bound to appear in deposition of a truthful witness. He further contended that no significance can be attached to the circumstance that the victim kept waiting at the shop of Pawani after the incident rather than making an effort of returning to her village because she had been misled by Pawani into believing that the next bus going to her village would be leaving at 6 O ‘Clock’ in the evening. Thus, the victim had nowhere else to go and kept waiting. No sooner her brother and uncle came to Shiv, she accompanied them and returned to her village. He further urged that the absence of injuries on the body and private parts of the victim is immaterial and would not discredit her testimony because the medical examination was conducted after significant delay. With these submissions, he craved rejection of the appeals.

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I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellants and learned Public Prosecutor and have gone through the impugned judgment and the record.

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The prosecution claimed that the victim is a minor at the time of the offence but the trial court did not accept this assertion and held that she was above 18 years of age at the time of the incident. Normally, contradictions appearing in evidence of a gangrape victim cannot discredit her entire testimony but in such a

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(10 of 20)

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situation, her evidence has to be appreciated keeping in mind the general safeguards governing appreciation of evidence in criminal cases. The victim, who resided with her father at the village Pushad, claims to have gone to the village Shiv for purchasing some household articles on 23.01.2013. It is virtually an admitted case of the prosecution that the accused Luna Khan, Gazi Khan and Amin Khan were not known to the girl from before. Despite that, Luna Khan and Gazi Khan were named as the raists in the written report (Ex.P/4). An explanation was offered by the girl during her evidence that the co-accused Pawani was mentioning names of these persons and that is why, she became aware of their identity. Ex-facie the said explanation is farfetched and unacceptable on the face of record. In natural course of events, when a group of familiar persons converse with each, no one would address the other with the father’s name and address. The significant fact that the victim did not know names of the accused from before and yet their names; father’s names and addresses are mentioned in the FIR, makes the prosecution case doubtful. The accused Amin Khan is not even named in the FIR and thus apparently, subsequent introduction of his name as driver of the offending vehicle is ex-facie an afterthought and the prosecution case as against the said accused has to be discarded at the outset.

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As per the prosecution evidence, the victim had gone to village Shiv on 23.01.2013 for buying some household articles. She started from her village in the morning at 8 O ‘Clock’ and

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(11 of 20)

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reached Shiv at 9 O ‘Clock’. She stated that upon her approaching Pawani, she was told that the goods which she required would be arriving from Jodhpur at about 12 O ‘Clock’ and that she would have to wait. Hence, she got delayed and, the last bus going to her village departed. As a result, she was left with no means of returning to her village on that day. She unhesitatingly accompanied Pawani to her dhani which was at a little distance from Shiv. She took food with Pawani and then went to sleep with one Durga. During the night, the alleged incident as narrated above happened. She further alleged that Amin Khan was also present with the two principal accused who subjected her to rape and he and Pawani threatened her not to divulge the incident to anybody. After the victim had allegedly been ravished, Pawani took her back to her Dhani where she went to sleep without a bother as if nothing had happened. In the next morning, she took food at Pawani’s house and reached Shiv at about 12 O ‘Clock’. There Bhura Ram and Lalaram met her and she accompanied them back to her village and disclosed the happenings to her mother and brother. Her father was called and then the report was lodged. Upon being cross-examined, she stated that it was her third or fourth visit to Shiv. She did not divulge the incident to her brother at Shiv and only spoke out after returning to her village. She categorically stated that the act of sexual assault perpetrated by the accused upon her was the first time she had been penetrated sexually. During this incident, she offered serious resistance to the accused and received number of injuries. She

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had come to Shiv for purchasing bangles, etc. which costed her Rs.300/-.

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It is beyond belief that for purchasing bangles and grocery items, etc. costing barely Rs.300/-, the girl would be required to spend hours together at the village Shiv and could not catch the last bus to her village which departed as late as 6.00 PM. She categorically stated that she left her house at about 8 O ‘Clock’ in the morning, reached Shiv at 9 O ‘Clock’, purchased the goods worth Rs.300/- and then stayed back at Pawani’s shop till the night. There was apparently, no reason for the girl to have stayed on at Shiv after her shopping spree had ended. Natural conduct required that she should have boarded the last bus to her village rather than loitering arrival at Pawani’s shop. This unnatural behavior makes her testimony doubtful.

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Regarding identity of the accused and the injuries received by her in the incident, she stated:

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“ ftu vknfe;ksa ds vkus dh ckr dg jgh gw¡] iouh uke crk jgh Fkh] blfy;s eSa crk jgh gw¡A eSa igys ls muds uke ugha tkurh gw¡A esjk muls ckr djus dk igys dke ugha iM+kA geus tks iqfyl esa fjiksVZ izn’kZ ih 4 is’k dh] oks fjiksVZ eq>s i<+dj ugha lqukbZ FkhA blfy;s eSa ugha crk ldrh dh fjiksVZ esa D;k fy[kk gSA vxj esjh fjiksVZ esa pkj vknfe;ksa ds uke fy[ks gSa rks xyr gS] eSaus rhu vkneh ns[ks FksA iouh dks igys ls tkuus dh ckr eSaus iqfyl okyksa dks eftLVªsV lkgc dks crk nh Fkh] exj D;ksa ugha fy[kh] irk ughaA iqfyl c;ku izn’kZ Mh 1 esa iouh }kjk lqcg ;g dguk fd lkeku ugha vk;k gqvk gS] vkSj lkeku tks/kiqj ls vk;sxk] ;g ckr eSaus iqfyl dks crk nh Fkh] D;ksa ugha fy[kh] irk ughaA iouh }kjk Qksu pktZ esa yxkus dh ckr iqfyl dks crk nh Fkh] D;ksa ugha fy[kh] irk ughaA eSaus iqfyl okyksa dks MªkbZoj dk uke crk fn;k Fkk] D;ksa ugha

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fy[kk] eq>s irk ughaA izn’kZ Mh 1 dk Hkkx , ls ch eSaus ugha fy[kk;k FkkA ;g ckr lgh gS fd izn’kZ Mh 1 c;ku o eftLVªsV c;ku izn’kZ ih 1 esa eqyfteku dks igys ls tkuus dh ckr ugha fy[kh gqbZ gS] eSasus rks iqfyl o eftLVªsV lkgc dks crk nh FkhA ;g ckr lgh gS fd ?kVuk ds le; f[kprku ds le; esjs diM+s QV x;s Fks] vkSj esjs lkFk xyr dke djus ls esjs xqIrkax ls [kwu vk;k Fkk] tks esjs diM+ksa ij yxk FkkA eSaus oks [kwu yxs o QVs diM+s iqfyl dks crk;s FksA exj iqfyl okyksa us dsoy pM~Mh yh Fkh] QVs o [kwu vkyqnk diM+s ugha fy;s FksA ”

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In further cross-examination, she admitted that when her uncle and her brother met her at Shiv on 24.01.2013, they did not

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make any enquiry from her nor did she tell them of the incident. She categorically admitted at page 7 of her cross-examination that she did not know the father’s names of the accused and was at a loss to explain how these names appeared in the written report. She further admitted that the investigating officer did not get the identification of the accused done at her instance. A question was put to her by the court regarding the contradiction about the identity of the accused because at one point of time, she stated that she knew the accused and later on in crossexamination, she stated that she did not know their names from before the incident and Pawani had disclosed the names. In reply to this question, she stated that the accused used to come to their village for purchasing goats and that is why she knew them. In the very next question put to her by the defence, she stated that she did not know the names of the accused. However, this material admission was totally ignored by the trial court while

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appreciating the victim’s evidence. PW-5 Bhura brother of the victim, stated that when his sister did not return on the same day from Shiv, they became worried and thus, he and his uncle Lalaram, went to village Shiv. They met the victim at the cabin of Pawani at 3 O ‘Clock in the afternoon of 24.01.2013. He admitted that the prosecutrix had never met the accused persons before the incident. The first informant Ummeda Ram (PW-7) being the father of the prosecutrix was cross-examined by the defence in reference to the FIR and he categorically stated that the report was scribed by the SHO and that it was not read over to him. The witness feigned ignorance regarding the alleged incident. These circumstances cast a serious doubt on the prosecution case regarding the identity of the accused and give an indication that the FIR might have been sponsored by someone with oblique motives.

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There is yet another very significant contradiction in the statement of the victim in context to the written report which was admittedly drafted after she disclosed the entire sequence of events to her father. The victim herself is a signatory to the report. In the written report (Ex.P/4), there is no such assertion that the accused Luna Khan and Gazi Khan, bodily lifted her on to a pick-up vehicle and then subjected her to rape. While deposing under Section 161 Cr.P.C. and in her sworn testimony, the prosecutrix alleged that the accused bodily lifted and placed her in the rear side storage section of the vehicle and gang-raped her therein. True it is that absence of injuries on the persons of a

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gang-rape victim cannot compulsively be considered as creating doubt on her testimony if it is otherwise reliable. However, such circumstance is definitely relevant while appreciating evidence of the witness. In the case at hand, the prosecutrix emphatically stated that when she was subjected to forcible gang-rape by the two accused appellants, she got numerous abrasions, scratches, etc. on her body and that the accused persons also inflicted bite marks on her body and she started bleeding from her genitals after the alleged rape. The medical officer Dr. Rita Bhatiya (PW10), who conducted medical examination of the victim, clearly stated that she did not find any injury, bite marks, etc. either on the private parts or anywhere else on the victim’s body. Evidently thus, the story set up by the prosecutrix that she was subjected to gang rape associated with physical violence in the rear storage section of the pick-up vehicle made of metal sheets and that she received large number of injuries in the process is ex-facie false. Total absence of injuries on her person despite a specific allegation being made that such injuries were caused creates serious doubt and dents in her sworn testimony. As has been observed above, seeking corroboration of the evidence of the victim in case of rape is not a sine-qua-non but when, seriously doubtful circumstances are noticed in her evidence, seeking corroboration is advisable. The present one is definitely a case where, the victim’s evidence cannot be accepted without corroboration. Apparently, the victim’s testimony is not corroborated but is rather contradicted totally by the medical evidence and other circumstances manifested from

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the record. A specific suggestion was given by the defence to the material prosecution witness that a sum of Rs.15,00,000/- was demanded from the accused persons and a false case was foisted because the demand was not met.

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The inherent omissions, contradictions and infirmities appearing in evidence which make the entire prosecution case doubtful can be summarised as below:-

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(1) mentioning of the names of the accused Luna Khan and Gazi Khan, their father’s names, their place of residence in the FIR despite the admitted position that the prosecutrix was not knowing them from before.

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(2) omission of the significant fact in the FIR that the accused subjected the victim to rape in the rear storage section of a pick-up vehicle .

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(3) total absence of marks of violence/injury on the person of the prosecutrix even though she claimed to have received large number of injuries when the two principal accused subjected her to gang rape.

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(4) total lack of marks of violence on the victim’s genitals even though she claimed that it was the first incident of sexual assault upon her and that too by two adult males.

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(5) highly unnatural conduct of the victim after the incident and on the next day viz. staying back at Pawani’s shop even after returning from her dhani even though she had been allegedly raped by Pawani’s active connivance and in not disclosing the

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(17 of 20)

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incident to her brother Bhura Ram whom she met at Pawani’s shop on 24.01.2013 between 12.00 to 03.00 pm.

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On going through the trial court’s judgment, it is apparent that the reasoning given therein for accepting the evidence of the prosecution regarding identity of the accused is flimsy and unconvincing. The trial court relied on the lame explanation given by the victim in answer to a court question that the accused used to visit her village for purchasing goats, etc. and that Pawani also spoke out their names and thus, held that there was no need of holding test identification of the accused. The said finding is apparently perverse and appears to have been recorded by overlooking the specific admission appearing in the crossexamination of the prosecutrix when she admitted that she had never met the accused earlier. As a matter of fact, the Presiding Officer virtually solicited the explanation by putting the particular court question. The victim categorically stated that only three persons were present at the time of the incident and resiled from the allegation set out in the FIR wherein, four persons were named including Durga (who was not charge-sheeted). She was confronted with her previous police statement (Ex.D/1) and the statement recorded under Section 164 Cr.P.C. (Ex.P/1). In both these statements, there is a material omission of the fact that the accused were known to the girl from before. The girl categorically admitted in her cross-examination that she did not know the father’s names of the accused and could not explain as to how these details and the residential address of the accused was

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recorded in the FIR. The trial court placed much weight on the fact that the prosecutrix stated in her cross-examination that she knew the accused because they used to come to her village for purchasing goats. However, the categoric admission appearing in the further cross-examination by the defence after the court question that she only knew the accused from their faces and did not know their names from before, was conveniently overlooked by the trial court.

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There is yet another significant contradiction in the sworn testimony of the prosecutrix vis-a-vis her statement recorded under Section 164 Cr.P.C.. Whilst in the sworn testimony, the prosecutrix alleged that after the incident, she went to sleep at the house of Pawani and then came to village Shiv at about 12 O ‘Clock’ where her brother Bhura Ram and uncle Lalaram met her. Thereafter, she went back to her home with them. On the other hand, in the statement recorded under Section 164 Cr.P.C. (Ex.P/1), she categorically stated that on the next morning, Pawani dropped her off at her home. This is far too significant to a contradiction so as to be ignored.

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In view of these significant anomalies, contradictions and infirmities emanating from the prosecution case, a strong doubt is created in the Court’s mind that the accused appellants might have been falsely implicated in this case for oblique motives and that the incident as alleged never happened. The involvement of the local M.L.A. Jalam Singh for entangling the accused in this case was projected by way of defence theory on behalf of the

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accused. Specific suggestions to this effect were given to the first informant Ummeda Ram and the victim herself. The victim admitted in her cross-examination that she knew Jalam Singh, Ex. M.L..A. from before and that he was present at the Barmer Hospital when she was medically examined. The trial court attached much significance to the FSL report in which, an opinion was given that the victim’s underwear upon being sent for chemical examination tested positive for presence of semen stains. However, the seized underwear was not got identified by the victim in her testimony. Thus, no importance can be attached to the FSL report.

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In view of the above discussion, this Court is of the firm opinion that the prosecution failed to lead reliable and trustworthy evidence to bring home the charges against the accused appellants beyond all manner of doubt; rather it appears to be a case of false implication.

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As a consequence, the conviction of the appellants as recorded by the trial court for the abovementioned offences cannot be sustained. The appeals deserve to be and are hereby allowed. The impugned judgment dated 29.05.2014 passed by the learned Sessions Judge, Balotra in Sessions Case No.18/2013 whereby, the appellants were convicted and sentenced in the above terms is set aside. The accused are acquitted of the charges. The appellants Amin Khan and Badami Devi @ Pawani are on bail. They need not surrender. Their bail and bonds are discharged. The accused appellants Luna Khan and Gazi Khan are

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in custody. They shall be released forthwith if not wanted in any other case.

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A copy of this order be placed in each file.

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Record be returned to the court below.

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tikam daiya/

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(SANDEEP MEHTA)J.

Luna Khan and Ors. v. State

Case brief

What is this about?

What did the court decide?

Luna Khan and Ors. v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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