IN THE HIGH COURT OF SINDH,CIRCUIT
COURT, HYDERABAD
Cr.
Appeal No. S- 50 of 2015
Appellant: Baboo Lal alias Babu through Mr. Muhammad Akhtar Shoro, Advocate.
Respondent: The
State through Mr. Shahzado Saleem
Nahiyoon,
D.P.G.
Date of hearing : 14-06-2021.
Date of decision : 23-08-2021.
J U D G M E N T
ZULFIQAR
ALI SANGI, J:- Through this appeal, appellant
Baboo Lal alias Babu has challenged the Judgment dated 13.03.2015 passed by
learned Additional Sessions Judge, Tando Muhammad
Khan in S.C. No. 57 of 2013 re-The State v. Baboo Lal alias Babu emanated from Crime
No. 202 of 2013 registered at police station Tando
Muhammad Khan under Section 376(i) PPC whereby he was convicted for offence punishable
under Section 376(i) PPC and sentenced to suffer R.I for fifteen years and to
pay fine of Rs.50,000/- to the victim, in default thereof to suffer R.I for a
period of six months. The appellant was also extended benefit of Section 382-B
Cr.P.C.
2. Brief facts of the prosecution case are
that on 07.09.2013 at 9:00 a.m. Complainant Ramoon
along with his daughter Chanda and other inmates were
sleeping when at about 0200 hours on the barking of dogs he and his wife woke
up and did not find their daughter Chanda in the
house, they searched her inside the house but at some distance of his house he
heard sound of slaps coming from the hotel, when they entered into the hotel,
on torch light they saw that Chanda was lying on the
cot and Babu Thakhur was
forcibly committing rape with her. On seeing the complainant party, he fled
away. Victim’s mother untied her mouth and hands and brought her at house. Such
FIR was registered.
3. After registration of FIR, police
conducted investigation, arrested accused and on completion of investigation
submitted challan against him in the concerned court.
4. After completing all the legal
formalities, the trial court initiated trial by supplying copies to the accused
as required under section 265-C Cr.P.C. The charge was framed against the
accused to which he pleaded not guilty and claimed trial.
5. The prosecution in support of its case
examined P.W.1 Complainant Ramoo at Ex.04, who
produced FIR at Ex.4/A, P.W-2 Mst. Rakhori was examined
at Ex.5, P.W-3 victim Mst. Chanda was examined at
Ex.6, P.W-4 Dr. Shahida Parveen
was examined at Ex.07, who produced police letter at Ex.7/A, Provisional
Medico-legal certificate at Ex.7/B, Chemical Examiner’s report at Ex.7/C and
Final Medico-legal Certificate at Ex.7/D, P.W-5 Manoo
was examined at Ex.8, who produced mashirnama of
arrest of accused, place of incident, Shalwar of
accused and Parho of victim Chanda
at Ex.8/A to Ex.8/D respectively. P.W-6 Dr. Ashique
Mehdi was examined at Ex.09, who produced police letter, Provisional and Final
Medico-legal certificate at Ex.9/A to Ex.9/C. P.W-7 SIP Ashfaque
Ahmed Jahejo was examined at Ex.10. Thereafter the learned ADPP
for the State closed the side of prosecution vide statement at Exh.11.
6. Statement of accused
was recorded under section 342 Cr.P.C at Exh.12. In his statement, the accused
denied the allegations of the prosecution and claimed his innocence. He has
further stated that he and his family have not supported the Sirhandi group in Election. While the complainant party
belonged to Sirhandi group and he wants to usurp his
hotel, therefore, he has falsely implicated him in this case. After lodging the
FIR they also usurped his hotel, therefore, his father lodged the FIR No.211 of
2013 under Section 504, 506, 436, 427, 114 & 34 PPC at police station Tando Muhammad Khan against complainant party. However, the
accused neither examined himself on oath under Section 340(2) Cr.P.C, nor lead any
evidence in his defence. After recording evidence and
hearing the parties, learned trial court convicted the accused as stated above,
hence the instant appeal.
7. Learned counsel for the appellant has
contended that the impugned Judgment is opposed to law, facts and justice and
so also the principles of natural justice and equity; that learned trial court
has erred in convicting the appellant by not taking into consideration the
entire material and thus the impugned Judgment is liable to be set-aside; that
the impugned Judgment rests upon the testimony of interested witnesses, which
remained unsupported and uncorroborated by some independent evidence, which has
caused miscarriage of justice; that the complainant party belonged to Sirhandi group and the appellant and his family have not supported
Sirhandi group in the elections, therefore, due to
political enmity the appellant has been falsely implicated in this case and
after lodging FIR, the complainant party also usurped the hotel of the
appellant, for which his father lodged FIR No. 21 of 2013 at same police
station against the complainant party, but this aspect of the case has not been
considered by the trial court while passing the impugned Judgment; that the
medical evidence do not support the evidence of victim and no test for semen
grouping was conducted and according to medical evidence, no marks of violence were seen on the body of the victim,
thus the medical examination of the victim falsifies the story of prosecution,
but this important aspect of the case has not been considered by the trial court
while passing the impugned Judgment; that there is material contradictions
between the evidence of complainant and P.Ws; that there is delay of six days
in lodging the FIR, hence deliberation and consultation cannot be ruled out. He
finally prayed for acquitting the appellant.
8. Learned D.P.G. appearing for the state
has vehemently opposed the acquittal of appellant on the ground that it is
medically proved that rape has been committed upon the victim; that prosecution
has proved its case against the appellant beyond reasonable doubt by producing
oral as well as medical evidence; that no major contradiction is pointed out by
the defence counsel; that the offence in which the appellant is involved is a offence against society; that learned trial court has
rightly convicted the appellant and the appellant is not entitled for any lenient
view, hence he prayed that the appeal of the appellant may be dismissed.
9. I have heard learned counsel for the parties and have gone through
the material available on the record with their able assistance.
10. On reassessment of the entire evidence produced by the prosecution
it is established that the prosecution has not proved the case
against the appellant beyond a reasonable doubt.
11. As per the
prosecution case incident took place on 8-09-2013 at 0200 hours and the FIR was
registered on 15-09-2013 at 1030 hours with the delay of 07 days. It is settled
by now that in the cases of rape the delay in registration of FIR is not fatal
to the case of prosecution. In rape cases victims and their families may
be reluctant to come forward to promptly report the crime because of the trauma
that had been suffered and they may have a perception of shame or dishonour in having the victim invasively examined by a
doctor. Reliance is placed on the case of Irfan
Ali Sher V. The State (PLD 2020 SC
295). However, the facts and
circumstances of the present case are some different. After the incident victim was medically examined on 09-09-2013 at 3.30 pm. The letter
issued by the police to the doctor on 09-09-2013 Ex. 7/A also does not indicate
any sign in respect of the accused. The prosecution was unable to produce any
evidence in respect of the accused that he has committed the rape with the
victim till 15-09-2013. The name of the appellant was first time introduced by
the prosecution after 07 days of the incident without offering any explanation
which creates very serious doubt in the prosecution case.
12. The story as narrated
by the prosecution that firstly the victim was kidnapped by the appellant from
her house in the night time and secondly was raped in the hotel and no other
person was with the appellant creates some doubt about the happening of
incident in the manner disclosed by the prosecution. The victim was stated to
be aged about 20 years and it was not possible for a single person to take girl
of 20 years age forcibly from her house in presence of other inmates of the
house up to hotel situated at some distance and committed rape with her
forcibly. She must raised crises at the time of her
kidnapping till she reached at the hotel but there is no evidence in this
respect. Hearing of crises of the victim girl by the prosecution witnesses from
the hotel of appellant also creates doubt as according to the evidence of PWs
when they reached at the hotel they saw that she was tied with cot and her mouth
and hands were also tied which indicate that she was unable to make crises.
13. The incident was of
night time incident and the identification of the appellant was stated to be on
the torch light. Torch was not produced before the police nor was produced
before the trial court, even the investigation officer
not collected the same during the investigation. It was held by the apex courts
that the identification on torch light is weak type of the identification and
cannot be relied upon in absence of strong supportive evidence.
14. The oral evidence
produced by the prosecution is not sufficient to believe that the appellant has
committed the offence; all the eye witnesses including the victim gave
contradictory evidence on material aspects of the case. PW 01 Ramoo
(complainant/father of victim) in his cross-examination stated that “The accused untied her mouth and hands.”
PW 02 Rakhori (mother of victim) in her cross-examination
stated that “her mouth and hands were
tied. I untied her mouth and hands.” PW 03 Chanda
(victim) has not deposed a single word that her mouth and hands were tied by
the accused or she was tied with cot.
15. PW-5 Manoo (mashir) during his
cross-examination negated almost entire his evidence given during his
examination-in-chief. He stated in his cross-examination that “on the next day of arrest of the accused
the police called me and my father at police station. I don’t know as to how
many days of arrest of the accused he produced, his shalwar
to the police. He did not produce his shalwar to the
police in my presence. I never met with the police prior to the arrest of the
accused. The police did not seal the shalwar of the
accused in my presence.” In the
circumstances evidence furnished by this witness is not reliable, trustworthy
and confidence inspiring hence the same is discarded.
16. The oral evidence
produced by the prosecution is in conflict with the medical evidence. The
victim PW-03 Chanda in her examination-in-chief
deposed that she was subjected to rape and accused also maltreated her but the
medical evidence does not supported her version about the maltreatment as
according to the evidence of doctor Shahida Parveen PW-04 victim
has no any staining or abrasion at left and right thigh and also have no any
mark of violence at vulva, vagina, or on whole body.
17. The contradictions as pointed out above in the evidence of the eye
witnesses and the improvements made by them during the trial in my view are
major in nature which cut the roots of the prosecution case and make it
doubtful. On the basis of material contradiction this court has allowed the
appeals and set-aside the convictions handed down by the trial courts in cases
of Taj Mohammad and 2 others V. The State (2020 P.Cr.L.J 1693) and Ghulam Hyder through superintendent, central prison V. The State (2020 YLR 2411).
18. It is also observed
that the medical evidence including the chemical examiner’s reports were not
put to the appellant while recording his statement under section 342 Cr.P.C.
enabling him to explain the circumstances, and the same cannot be used against
him as has been held by Honourable Supreme Court in
the cases of Imtiaz @ Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148), Mst: Anwar Begum v. Akhtar Hussain
alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v. The State (2010 SCMR 1009).
19. As per the defence
version, the appellant was involved due to political rivalry with Pir Saeed Jan Sarhandi, appellant took
this defence from the very beginning of the case till his statement under
section 342 Cr.P.C was recorded. The version of the appellant was admitted by
the prosecution witnesses during their cross-examination and they stated that
they are the supporters of the Pir Saeed Jan Sarhandi and the
appellant had dispute with him. The witnesses also admitted that Pir Saeed Jan Sarhandi
was with them when victim was medically examined and he was also with them at
the police station when FIR was registered, even on the day of evidence of the
victim he was available outside of the court as has been admitted by the victim
that she was brought by Pir Saeed
Jan Sarhandi at court for recoding her evidence. PWs
only negated that they have involved the appellant on the instance of said Pir Saeed Jan Sarhandi
and the same is not sufficient to discard the defence version.
20. It is a well settled
principal of law that the prosecution has to prove its case beyond a reasonable
doubt and where even a single circumstance which creates reasonable doubt in
the mind of a prudent man comes in the evidence of the prosecution the benefit
must go to accused not as a matter of grace or concession but as a matter of
right. Reliance is placed on the case of Tariq Pervez V. The State (1995 SCMR 1345).
21. Thus based on the above discussion and on reassessment of
the evidence on record, I am of the view that the prosecution has failed to
prove its case against the appellant beyond any reasonable doubt, therefore, I
allow the instant appeal and set-aside the conviction and sentences handed down
by the trial court vide judgment dated 13.03.2015 and acquit the appellant by
extending him the benefit of the doubt. The appellant Baboo
Lal alias Babu s/o Gemar by caste Thakhur (Hindu) shall
be released forthwith unless he wanted in any other custody case.
22. The above Cr. Appeal is disposed of in the above terms.
JUDGE