Farooq vs State (2025:Rj-Jd:22050-Db)
2025 Latest Caselaw 453 Raj

Rajasthan High Court - Jodhpur

Farooq vs State (2025:Rj-Jd:22050-Db) on 7 May, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:22050-DB]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                  D.B. Criminal Appeal No. 485/1999

Farooq S/o Nazir Mohd., resident of Chikarda, Police Station
Dungla, District Chittorgarh.
                                                                       ----Appellant
                                       Versus
State of Rajasthan.
                                                                    ----Respondent


For Appellant(s)             :     Mr. Rajiv Bishnoi.
For Respondent(s)            :     Mr. Rajesh Bhati, PP.



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SUNIL BENIWAL

Order

07/05/2025

1. This criminal appeal under Section 374 Cr.P.C. has been

preferred by the accused-appellant laid a challenge to the

judgment of conviction and order of sentence dated 10.08.1999

passed by the learned Special Judge, SC/ST Cases, Pratapgarh in

Special Sessions Case No.57/98 (State of Rajasthan vs. Farooq),

whereby the accused-appellant has been convicted and sentenced

as below:

     Offence under               Sentence(s)                        Fine(s)
      Section(s)
        376 IPC                10 Years' R.I.          Rs.500/-, in default of which,
                                                       was ordered to undergo
                                                       further 3 months' R.I.
 3(2)(v) of SC/ST Act       Life Imprisonment          Rs.500/-, in default of which,
                                                       was ordered to undergo
                                                       further 3 years' R.I.

2. The salient facts of the case, as discerned by this Hon'ble

Court, reveal that one Ratni, belonging to the Khatik caste, lodged

[2025:RJ-JD:22050-DB] (2 of 12) [CRLA-485/1999]

an oral report at Police Station Bhadesar. She stated that after

visiting Avri Mata Temple from her village and having Darshan,

she was returning in Sanwariyaji's Bus. She alleged that a man

standing near her in the Bus made inquiries and introduced

himself as Farooq. He accompanied her until Bhadsora Chauraha

where he offered her sugar-cane juice, which she declined.

Despite her refusal, he allegedly forced her to disembark and

drink the sugar-cane juice. During that time, the Bus, in which,

she had been travelling departed. Farooq then offered her to drop

on his motorcycle. They proceeded from Chauraha to Sanwariyaji

Bus stand, where Farooq retrieved his motorcycle and took her to

Chittorgarh. She alleged that she was threatened, which

prevented her from disclosing the incident to anyone. They

watched a Cinema in Chittorgarh until 9 o'clock. Thereafter, they

returned to Asawara Mata, where they went to sleep in Farooq's

Ghumti. She further alleged that at about 2 o'clock in the night,

Farooq removed her clothes and, threatening her with dire

consequences, forcibly had sexual intercourse with her. When she

shouted, some individuals standing outside the Ghumti

approached, but departed upon seeing Farooq. Subsequently,

Farooq closed the window of the Ghumti and offered her Rs. 500/-

for her silence, then instructed her to return home. She thereafter,

located the address of the Police Station and reported the matter.

2.1. On the basis of the aforesaid report, an FIR bearing FIR

No.111/1998 was lodged before the concerned Police Station

against the accused-appellant for the offences under Section 376

[2025:RJ-JD:22050-DB] (3 of 12) [CRLA-485/1999]

IPC and Section 3 of SC/ST Act and the investigation commenced

accordingly. After investigation, a challan was filed against the

accused-appellant and the matter was committed to the Court of

Special Judge, SC/ST Cases, Pratapgarh.

2.2. The learned Trial Court framed the charges against the

accused-appellant under the aforementioned provisions of IPC;

the said charges were read over to the accused-appellant, which

he denied and claimed to stand due trial, whereafter, the trial

commenced accordingly.

2.3. During the course of trial, the prosecution produced as many

as 15 witnesses (PW-1 to PW-15) and got exhibited documents

(Exhibit P-1 to P-15) whereafter, the accused-appellant was

examined under Section 313 Cr.P.C., in which he pleaded

innocence and false implication in the criminal case in question.

2.4. Thereafter, upon hearing the contentions of both the parties

as well as considering the material evidence placed on record, the

learned Trial Court, convicted and sentenced the accused-

appellants, as above, vide the impugned judgment of conviction

and order of sentence dated 10.08.1999, against which the

present appeal has been preferred by the accused-appellant.

3. Mr. Rajiv Bishnoi, learned counsel appearing for the accused-

appellant, submits that the prosecution's case lacks testimony of

eyewitness, complete chain of circumstantial evidence, Forensic

Science Laboratory (FSL) reports, medical evidence of injury or

any kind of doctor's evidence, which could attribute the rape to

[2025:RJ-JD:22050-DB] (4 of 12) [CRLA-485/1999]

the present accused-appellant, therefore, the sole material

evidence relied upon by the prosecution is the statement of the

prosecutrix, rendered in her capacity as PW-2.

3.1. Learned counsel has drawn the attention of this Court to the

deposition of the prosecutrix wherein she averred that she went

alone to offer Darshan at Avri Mata temple and was returning back

at about 5:00 PM. At Bhadsora Chauraha, a boy, introducing

himself as Farooq, the present accused-appellant, persuaded her

to alight from the Bus. The prosecutrix further deposed that the

accused-appellant had trailed the Bus on his motorcycle from Avri

Mata temple and offered her to drop at Chittorgarh, which she

accepted, accompanying him on his motorcycle. She further stated

that the accused-appellant took her to a cinema in Chittorgarh for

a night show from 9:00 PM to midnight, during which he allegedly

gave threats. Subsequently, the accused-appellant took her to his

Ghumti near the Avri Mata Temple where they both retired for the

night. The prosecutrix alleged that, while she was in the Ghumti,

the accused-appellant disrobed her and committed rape. She

further deposed that she lay calmly, thereafter and later she

reported the matter to the concerned Police Station.

3.2. Learned counsel thereafter, has taken this Court to the

cross-examination of the prosecutrix wherein she admitted to

traveling alone to offer Darshan at Avri Mata, which was 3-4 hours

of distance from her village. She also disclosed that after

marriage, she had been embroiled in disputes with her husband

and was residing with her mother, with the matrimonial discord

[2025:RJ-JD:22050-DB] (5 of 12) [CRLA-485/1999]

ongoing. The prosecutrix conceded that she had voluntarily and

willingly accompanied the accused-appellant to the cinema, which

was a crowded place, and thereafter, travelled with him on his

motorcycle to the Avri Mata Temple, which was a distance of about

one hour from Chittorgarh. She further deposed that the Ghumti

of the accused-appellant was located in an area with open shops,

and that he provided her with clothes to wear. The prosecutrix also

admitted that following the alleged incident of rape, she remain at

the Ghumti consensually for some time. The prosecutrix further

noted that despite the presence of police in the vicinity, she

reported the incident only upon being prompted to do so.

3.3. Learned counsel has also taken this Court to the testimony

of PW-1, Dr. Dilip Kumar Sharma, who deposed that no injuries

were observed on the body of the prosecutrix, that she was

habituated to sexual intercourse, and that there were no visible

signs of rape, as confirmed in his cross-examination.

3.4. Learned counsel further submits that neither the FSL report

nor any kind of circumstantial evidence supports the contention of

forcible sexual intercourse. With respect to the charge under

Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act,

learned counsel contends that the prosecutrix has consistently

deposed that she saw the accused-appellant for the first time,

when he followed the Bus on his motorcycle and then went with

him on his motorcycle, and therefore, there is no question of the

appellant being aware of the prosecutrix's caste particulars.

[2025:RJ-JD:22050-DB] (6 of 12) [CRLA-485/1999]

4. Conversely, learned Public Prosecutor, while opposing the

aforesaid submissions advanced on behalf of the accused-

appellant, submits that there is a consistency in the report of the

prosecutrix.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court observes that as far as the charge under Section

3(2)(v) of the SC/ST (Prevention of Atrocities) Act is concerned, it

is writ large on the facts that the accused-appellant was unaware

of the prosecutrix's caste particulars, and thus, the conviction of

the accused-appellant under the aforementioned provision, in the

absence of any knowledge of her caste, is unsustainable in the

eyes of law.

6.1. This Court further observes that the learned Trial Court duly

recorded the statement of the prosecutrix and was conscious of

the fact that the prosecutrix voluntarily travelled from Avri Mata to

Chittorgarh, a journey of about one hour by motorcycle, in the

company of the accused-appellant. She further consented to

watching a movie with him, frequented public places without

protest, and voluntarily accompanied him to his Ghumti, where

she remained in his company for some time without raising any

alarm or objection. Moreover, the medical report of PW-1, Dr. Dilip

Kumar Sharma, does not corroborate the occurrence of rape,

further weakening the prosecution's case.

[2025:RJ-JD:22050-DB] (7 of 12) [CRLA-485/1999]

6.2. This Court also observes that the conviction of the accused-

appellant does not induce confidence regarding establishing of the

case beyond reasonable doubt for convicting the accused-

appellant. Though, the testimony of the prosecutrix alone can be

sufficient to convict a person if it is credible or cogent, but at the

same time, when the prosecutrix herself narrating the manner in

which she has voluntarily gone with him on his motorcycle and

travelled at public place such as watching a movie at a crowded

cinema willingly and also went to his Ghumti and then continued

to stay with him for some time does not give sufficient strength to

her deposition so as to establish the case to the realm of proof

beyond reasonable doubt. The testimonies of PW-3 Dilip Kumar,

PW-4 Madan Puri and PW-5 Vinod, are of no consequence because

they turned hostile. Apart from that, PW-6 Narayan Singh and PW-

7 Ishwar Lal, who were the witnesses to the site plan, also turned

hostile.

6.3. This Court also takes note of the fact that PW-11 Shankar Lal

and PW-12 Sher Mohammed, in their depositions, confirmed the

sealed delivery of materials to the FSL Unit, but at the same time,

the FSL report has not been received. Additionally, PW-14 Ramdas

@ Ratandas, a witness to the seizure of the motorcycle, also

turned hostile. The sexual compatibility report of the accused-

appellant as provided by PW-10 Dr. Ramswaroop Meena, fails to

establish any connection between the accused-appellant and the

alleged crime. The statement rendered by PW-1 Dr. Dilip Kumar

Sharma, while confirming the age of the prosecutrix, notes the

[2025:RJ-JD:22050-DB] (8 of 12) [CRLA-485/1999]

absence of visible signs of rape, injury or any indication of a

recently torn hymen and there was no such report, which could

point out a rape to be indicated by the statement of the doctor.

The other witnesses, who support the circumstances, also do not

induce any confidence. Since, the matter came up before the

learned Trial Court only for conviction on the sole testimony of

PW-2 and in the given circumstances and the factual matrix, this

Court concludes that the prosecution has miserably failed to prove

the case beyond reasonable doubt.

6.4. This Court is conscious of the judicial pronouncement of the

Hon'ble Supreme Court in the case of Pankaj Singh v. State of

Haryana (Criminal Appeal No.1753/2023) decided on

21.03.2024, whereby the Hon'ble Apex Court reiterated that the

condition precedent for invoking the presumption under Section

114A of the Indian Evidence Act in cases involving rape is the

proof of sexual intercourse. In the instant case, the said condition

has not been fulfilled in light of the evidence on the record. The

decision affirms the fundamental principle of criminal law that the

accused is presumed to be innocent until proven guilty, with the

prosecution bearing the burden of establishing guilt beyond

reasonable doubt.

6.5. Thus, this Court observes that solely on the basis of the

testimony of the prosecutrix against the accused-appellants, the

burden and liability of the crime in question cannot be fastened

upon the accused. Furthermore, the absence of other material

[2025:RJ-JD:22050-DB] (9 of 12) [CRLA-485/1999]

evidence which could remotely be taken against the accused-

appellant, further strengthens the case of the accused-appellant.

6.6. This Court further observes that when the judgment of

conviction is challenged before the Appellate Court, a proper

appreciation of the evidence recorded by the learned Trial Court

has to be made. The power of the Appellate Court is provided

under Section 386(b) of Cr.P.C., which reads as under:-

"386. Powers of the Appellate Court.--

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."

6.7. This Court also observes that as provided under Section

386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the

findings of the conviction, so as to acquit the accused. At this

juncture, it is considered appropriate to reproduce the relevant

portion of the judgment rendered by the Hon'ble Apex Court in

case of Kamlesh Prabhudas Tanna v. State of Gujarat,

(2013) 15 SCC 263, as hereunder:-

"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The

[2025:RJ-JD:22050-DB] (10 of 12) [CRLA-485/1999]

filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P [(2000) 1 SCC 621:

2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2)

"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

(emphasis supplied)

10. In Rama v. State of Rajasthan[(2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4)

"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720: 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court.

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7)

[2025:RJ-JD:22050-DB] (11 of 12) [CRLA-485/1999]

"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction.

The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

6.8. In view of the aforementioned precedential backdrop, this

Court observes that in the present case, the sexual compatibility

report has not established any connection between the accused-

appellant and the alleged crime. Moreover, the recovery witness to

the seizure of the motorcycle has also turned hostile. Therefore, in

the presence of the such lacunae, the prosecution failed to prove

its case against the accused-appellant beyond all reasonable

doubts, which in the present case, are insufficient in themselves to

complete the chain of circumstantial evidence, and thus, it would

be appropriate to reverse the findings of conviction against the

accused- appellant, as recorded by the learned Trial Court in the

impugned judgment.

6.9. This Court also observes that looking into the overall factual

matrix and the circumstances of the case as well as the evidence

and the precedent law, as placed before us, it is a fit case to

exercise the power conferred under Section 386(2), which pertains

to the reversal of a finding from conviction to acquittal.

[2025:RJ-JD:22050-DB] (12 of 12) [CRLA-485/1999]

7. Accordingly, the present appeal is allowed and the

impugned judgment of conviction and order of sentence dated

10.08.1999 passed by the learned Special Judge, SC/ST Cases,

Pratapgarh in Special Sessions Case No.57/98 is quashed and set

aside. The accused-appellant is acquitted of the charges against

him. Accused-appellant Farooq is already on bail in pursuance of

the order dated 14.01.2000 passed by a Coordinate Bench of this

Hon'ble Court in the instant appeal; he need not surrender in

connection with the present case; his bail bonds stand discharged.

7.1. However, keeping in view the provisions of Section 437-A

Cr.P.C./481 B.N.S.S., the accused-appellant is hereby directed to

furnish a personal bond in the sum of Rs.25,000/- and a surety

bond each in the like amount before the learned Trial court which

shall be effective for a period of six months to the effect that in

the event of filing of a Special Leave Petition against the present

judgment on receipt of notice thereof, the accused-appellant shall

appear before the Hon'ble Supreme Court, as and when called

upon to do so.

7.2. All pending applications stand disposed of. The record of the

learned Trial Court be returned forthwith.

(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J

35-Zeeshan

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