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