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Criminal Revision No.872 of 1980, decided on 29th March, 1982

---S. 376/511-- Rape-- Testimony of eye-witnesses not going unchanged-- Defence not afforded opportunity to cross-examine prosecution witnesses-- Evidence of prosecutrix alone remaining in field-- Quarr, existing between accused and brother of prosecutrix over entitlement Ahata but she avoided to admit same in indirect manner-- No marks violence otherwise found on her person by lady doctor-- Courts below appearing to have misread evidence-- No evidence of unimpeachable character existing to sustain conviction-- Conviction and sentence see aside.

---S. 376/511-- Rape-- Circumstantial evidence, value of-- Attempt, rape-- Circumstantial evidence, held, has much value.--(Evidence)

Abdul Sattar Goraya for Petitioner. Ashfaq Ahmad Khan for A.A.-G. for Respondent. Date of hearing: 29th March, 1982.

Yasin son of Nawab caste Rajput resident of Chak No.165/9-L. Police Station Ghaziabad tehsil and district Sahiwal, was tried and convicted by Magistrate Section 30 Sahiwal, and sentenced to 4 years' R.I. under section 376/511, P.P.C. vide his order, dated 30-8-1979. An appeal was filed before the Additional Sessions Judge, Sahiwal, who by his order, dated 1-10-1980 maintained the conviction but reduced the sentence to years' R.I. Hence this revision petition.

2. Briefly the prosecution version is that on 2-3-1978 at noon time Mst. Asma (P.W.3) went to a sugarcane field to answer the call o nature. The petitioner 'appeared' there and grappled with her with an intention to commit rape on her. He forcibly felled her on the ground and by placing a hand on her mouth untied her trousers and attempted to commit rape on her. She resisted and also raised hue and cry which attracted her cousin Muhammad Sharif (P.W.1) and Mushtaq (given up P.W.). The petitioner, seeing the P.Ws decaped. Later in the day she lodged the report at Police Station Ghaziabad, where Jan Muhammad A.S.I. (P.W.6) recorded her statement Exh. P.C. at 5.00 p.m. Mst. Asma, the prosecutrix, was medically examined by Lady Doctor Tahira Rifat (P.W.41 on 2-3-1978 at 6.00 p.m. Her medico-legal report is Exh. P.D. According to her observation Mst. Asma was of 25 years age and an old case of sexual intercourse and at the time of examination she was pregnant. Th e lady doctor prepared the vaginal swabs of the prosecutrix and sent the same for detection of semen to the Chemical Examiner. The report of the Chemical Examiner is Exh. P.C/1 which is positive.

3. After recording the F.I.R., the A.S.I. made for the spot are' investigated the case. He seized a torn shirt of the prosecutrix are( made it into a sealed parcel vide memo. Exh. P.B. which was attested, by Abdul Aziz (P.W.2) and Abdul Ghafoor (P.W. not produced). The A.S.I. also collected certain broken pieces of bangles which were all taken into possession vide memo. Exh. P.A. He prepared a site plan Exh. P.E. without scale. He arrested the accused and after usual investi gation put the challan in Court.

4. At the trial 6 witnesses were produced by the prosecution in support of its case. Mst. Asma, the prosecutrix appeared as P.W.3r'and she was supported by Muhammad Sharif (P.W. 1) who is the eye-witness of the occurrence. Lady Doctor Tahira Rifar (P.W.4) gave out her observation which she had made at the time of medical examination of the prosecutrix on 2-3-1978. Dr. Shamshad (P.W.5) appeared and proved that the petitioner was potent. Abdul Aziz (P.W.2) is the recovery witness of certain articles from the place of occurrence but he had gone hostile.

5. When examined under section 342, Cr.P.C. the petitioner professed innocence. He, however, offered to produce defence evidence but declined later. The trial Magistrate observed that the charge against the petitioner was proved because the defence did not cross-examine the prosecution witnesses and in this way their testimony remained unchallenged. This finding of the trial Magistrate was upheld by the Additional Sessions Judge because he did not find any ill-will or enmity on the part of the witnesses against the petitioner. He appears to have been influenced by the fact that the recovery of broken pieces of bangles provided a circum stantial corroboration to the testimony of the eye-witnesses.

6. I have heard learned counsel for the petitioner as well as for the State and with their assistance I have also looked into the record.

7. It is to be noted that no sexual intercourse was committed the prosecutrix and only an attempt was alleged to have been made by the petitioner. It escaped notice of the trial Magistrate that Muhammad Sharif (P.W.1), an eye-witness in the case who was admittedly a relation of the prosecutrix, was not subjected to cross-examination for the reason that the defence counsel was absent and the cross-examination was reserved in the first instance. Subsequently the witness was summoned for 3-6-1979 but on that date again the witness was not cross-examined because of the absence of defence counsel and the learned Magistrate discharged the witness. I think that the Magistrate should have afforded another opportunity to the defence counsel to cross-examine this witness. In the circumstances it cannot be said that the testimony of the eye-witness has gone unchallenged. In my view, by having not afforded the opportunity to cross-examine Muhammad Sharif (P.W.1) his evidence cannot be read and must be excluded from consideration.

8. There now remains the evidence of the prosecutrix alone in the field. I have gone through the same and found that at places she had avoided to answer the questions put by the defence counsel in a straight forward manner. The case of the petitioner is that he had quarrelled over the entitlement of an Ahata with Shaukat, a brother of the prose cutrix. When this question was put to her, she had expressed her ignorance and then added that she was not present at that time. It makes me believe that a quarrel did take place but she avoided to admit the same in an indirect manner.

9. The learned Additional Sessions Judge, as I have observed earlier, appears to have been influenced by the torn shirt and broken pieces of bangles of the prosecutrix, allegedly found at the spot. I have seen the record and find that these articles have nowhere been produced or exhibited in Court much less that the prosecutrix had claimed those articles to be her property. In case of attempted rape, circumstantial evidence carries much value. As the torn shirt and broken pieces of bangles of the prosecutrix have not been produced in Court, the circumstantial value of those articles would automatically vanish. It may be observed that no mark of violence was found by the lady doctor on the person of the prosecutrix which in the normal course of event would have been there if the occurrence had taken place in the manner as alleged by the prosecutrix.

10. The sum total of the above discussion is that both the Courts below have certainly misread the evidence which has resulted in reaching at wrong conclusions 1 am therefore, of the view that there is no reliable evidence of unimpeachable character on record to sustain the conviction of the petitioner.

11. For the foregoing reasons, I set aside the conviction and sentence of the petitioner. Consequently, the petitioner is acquitted.

M.Y.H. Petition allowed.

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