SULTAN KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BEING aggrieved by the judgment and order dated 17.12.1986 passed by the learned Additional Sessions Judge, Jhalawar in Sessions Case No.139/1985 convicting the appellant under Sections 450 & 376 IPC and sentencing him to suffer five years' rigorous imprisonment with a fine of Rs.500, in default, to further undergo six months' rigorous imprisonment for his conviction under Section 450 IPC and to suffer rigorous imprisonment for seven years with a fine of Rs.500, in default, to further undergo rigorous imprisonment for six months for his conviction under Section 376 IPC, he is in appeal.

(2.) I have heard Mr.Harendra Singh, learned counsel for the appellant and Mr.Javed Choudhary, learned Public Prosecutor, Rajasthan. The facts, in brief, constituting the prosecution case and as available in the FIR dated 20.8.1984, are that in the evening of the previous day i.e.19.8.1984 at about 6:00 p.m., while Smt.Nanhi wife of Guljar Khan was sleeping in her house alongwith her child Insaf Ali, appellant-Sultan Khan entered her room and committed forcible intercourse with her. It was alleged that as the appellant thrust a piece of cloth in the mouth of the prosecutrix and further threatened her with a knife, she could not raise hue and cry. However, her child, seeing the occurrence, went out of the room and one Akbar came there and also saw the occurrence. The FIR disclosed that when Akbar accosted the appellant, the latter being infuriated, left the place of occurrence. It was further stated in the FIR that at the time of the occurrence, outside the house of the prosecutrix, two other persons, Asgar Sardar and Khwaja Sai were sitting and talking to each other.

(3.) MR .Singh has argued that the prosecution case is wholly unbelievable and ought to have been dismissed in limine. No trustworthy witness having been examined in support of the charge, the learned trial court ought to have acquitted the appellant as well, he argued. The learned counsel has insisted that not only, there is a conspicuous deviation from the version made in the FIR in the testimony of the prosecutrix at the trial rendering the prosecution case wholly incredible, Akbar Khan who was allegedly present at the time of the occurrence having denied the same completely, there was no basis to convict the appellant. Moreover, in absence of any medical examination of the prosecutrix, there was no proof of any sexual intercourse, and that too, by the appellant, he urged. He dismissed the finding of the forensic science examination about the existence of semen in the wearing apparels of the prosecutrix as wholly inconsequential, she being a married woman. According to him, this finding did not per se establish the culpability of the appellant. Mr.Choudhary per contra has argued that the evidence of the prosecutrix, PW-3 being cogent and convincing, the learned trial court has rightly recorded a finding of guilt against the appellant, while acquitting the co-accused. According to the learned Public Prosecutor, the so-called variation in the narration in the FIR and the testimony of the prosecutrix being of no bearing on the veracity of the prosecution case, no interference with the impugned judgment and order is called for.