Partly allowed

Haroon @ Maheboob v. State of Rajasthan through P P

Rajasthan HC26 Nov 2018CRLA/886/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan modified the life imprisonment sentence awarded by the trial court for rape. Due to weak investigation and lack of forensic evidence, the sentence was reduced to ten years imprisonment, though conviction was upheld.

What did the court decide?

Sentence for life imprisonment under Section 376 IPC substituted with ten years imprisonment and fine.

Haroon @ Maheboob Vs State of Rajasthan through… — Criminal Trial and Appeal | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 886/2017

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Haroon @ Maheboob Son Of Allabada Chopdar, By Caste Muslim, R/o Dumra, Police Station Mukundgarh, District Jhunjhunu. At Present Confined In Central Jail, Bikaner

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Versus

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State Of Rajasthan Through P.P.

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----Respondent For Appellant(s) : Mr. BR Choudhary For Respondent(s) : Mrs. Sonia Shandilya – PP Mr. RDS Naruka – for complainant

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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26/11/2018

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By this appeal, a challenge is made to the order dated 18^th September, 2015 passed by the Additional Sessions Judge No.1, Sikar (Raj.) in Session Case No.42/2015 (135/2010).

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The trial court has convicted the accused-appellant for offence under Sections 376 IPC and sentenced him to life imprisonment with fine of Rs.1,00,000/-, in case of default to pay fine, to further undergo one year simple imprisonment. The accused-appellant has been convicted even for offence under Section 323 IPC and sentenced him to six months simple imprisonment with fine of Rs.500/-, in default to pay fine, to further undergo one month simple imprisonment. Both the sentences were ordered to run concurrently.

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(2 of 5)

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[CRLA-886/2017]

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Learned counsel submits that an FIR was registered against the accused-appellant on the written report made by his wife-Smt. Naseem. It was alleged that accused-appellant has been continuously committing rape on her daughter (prosecutrix) for last two years. After registration of the FIR, the investigation was caused by the police. They found a case against the accusedappellant and, accordingly, a charge sheet was filed for offences under Sections 323 and 376 IPC. The accused-appellant did not accept the charges thus trial commenced.

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The prosecution produced ten witnesses apart from twenty documents to prove their case. The statement of the accusedappellant was recorded under Section 313 Cr.P.C. He produced five documents in defence. The trial court, thereupon, heard the matter and finding evidence against accused-appellant, convicted him for offences under Sections 376 and 323 IPC.

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Learned counsel for accused-appellant submits that order of conviction for offences under Sections 376 and 323 IPC has been passed by the trial court though prosecution could not prove their case. They withheld material witnesses and, accordingly, truth could not be brought before the court. It should have been taken adverse to the prosecution but giving them benefit, the order of conviction was passed.

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It is further stated that accused-appellant has already suffered imprisonment for eight years, two months and nine days. It is for the reason that he was not on bail during trial and even during pendency of the appeal. In view of the above, learned counsel has made alternative argument in reference to sentence.

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The delay of two years to register the FIR remained unexplained. It is apart from the fact that though clothes and bed-

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(3 of 5)

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[CRLA-886/2017]

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sheet were recovered by the police so as to match it with the semen of the accused-appellant. The semen of the accusedappellant was, however, not taken. The trial court even ignored the defence taken by the accused-appellant about involvement of Mahipal and Salim along with complainant-Smt. Naseem in prostitution.

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It is also a fact that six other children of the accusedappellant were residing in one and the same room. They were not produced to state the true facts of the case. The aforesaid is sufficient to acquit the accused-appellant.

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The accused-appellant having suffered imprisonment for more than eight years and two months, learned counsel has pressed the appeal against the sentence. Learned counsel submits that at the relevant time, minimum sentence for offence under Section 376 IPC was of seven years. The accused-appellant has been given maximum sentence of life imprisonment. It is even after ignoring that prosecution could produce weak evidence to prove the case. Taking into consideration the evidence led by the prosecution, a prayer is made to interfere in the sentence and instead of life imprisonment, it may be given for ten years.

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Learned Public Prosecutor has contested the appeal even for causing interference in the sentence. She submits that allegation against accused-appellant is quite serious thus interference in the sentence may not be made. It is, however, admitted that at the relevant point of time, minimum sentence for commission of offence under Section 376 IPC was of seven years. It was enhanced by amending Section 376 IPC in the year 2013 i.e. much subsequent to the incidence.

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(4 of 5)

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[CRLA-886/2017]

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Learned Public Prosecutor has admitted that semen of the

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accused-appellant was not taken. It is apart from the fact that statements of children of the accused-appellant, said to be residing in one and the same room, were not recorded in the investigation thus, they were not produced in the court. Learned Public Prosecutor, however, prayed to maintain the order passed by the trial court.

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We have considered rival submissions made by learned counsel for the parties and perused the record.

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Learned counsel has initially argued the case to challenge conviction of the accused-appellant for offence under Sections 376 and 323 IPC. Taking into consideration the fact that accusedappellant has already suffered sentence for more than eight years and two months, the prayer was made for causing interference in the sentence. It is in reference to the evidence led by the prosecution. The inherent weakness in the investigation has also been projected.

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We find that investigation in the case was caused by collecting the evidence but for that, semen of the accusedappellant was not taken so as to send it to the Forensic Science Laboratory. It is moreso when the clothes and the bed-sheet were taken by the police finding semen on it. The prosecution even failed to produce best evidence to prove their case.

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Accordingly, we find reason to cause interference in the sentence. We have taken into consideration the provisions of law then existing in the year 2010. It is, no doubt, true that due to the weakness in the investigation, benefit cannot be passed on to the accused-appellant but taking into consideration that accusedappellant is said to be the only bread-earner in the family and

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(5 of 5)

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[CRLA-886/2017]

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other aspects, we cause interference in the sentence. The accused-appellant is having seven children and grand-parents are quite old.

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We, accordingly, substitute the sentence of the accusedappellant. The sentence of life imprisonment given by the trial court for offence under Section 376 IPC is substituted by ten years imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo three months simple imprisonment.

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Since learned counsel has not challenged the order of the trial court for conviction of the accused-appellant for offences under Sections 376 and 323 IPC, it is maintained. The sentence for offence under Section 323 IPC is also maintained.

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With the aforesaid, appeal is partly allowed.

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(BANWARI LAL SHARMA),J (M.N.BHANDARI),J

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FRBOHRA

Haroon @ Maheboob v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

Haroon @ Maheboob v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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