Back
1992 Supreme(Guj) 251
Gujarat High Court
Judgename :C.V.Jani, D.G.Karia
Gulammohmed Mohmed Yusuf Saiyed - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 214 of 1991
Decided On : 10/01/1992
Headnote:
Code of Criminal Procedure, 1973 - Section 374 (2) - Indian Penal Code, 1860 - Section 376 - Criminal Appeal - Appellant-accused was convicted for committing an offence punishable and sentenced to suffer R.I for 5 years and to pay a fine in default to suffer R.I. for three months - He was also sentenced to suffer R.I. for three years and to pay a fine in default, to suffer imprisonment for one month for committing an offence - Held, Almost all the prosecution witnesses have admitted that the accused used to go out of his house for selling books - Situation of the hutment occupied by the accused and his family in a congested locality was such that any pedestrian passing on the road would be able to peep inside through the open window - All these circumstances when viewed in the background of the medical evidence indicated above, improbable the occurrence of the incident of rape alleged by the prosecution and it is not impossible that the complaint about a rape was registered at about 6-15 p. m. after the accused was brought to the hospital in a unconscious condition and his wife had complained about beating by the complainant and others - Complainant has, of course, denied that he had filed a false complaint under an apprehension that he would be held guilty for beating the accused - No action was taken by the police in respect of the complaint made in spite of the medical evidence about a number of injuries found on the person of the accused, nor did the learned Committing magistrate, or the learned Additional Sessions judge take cognizance of the offence coming to light from the medical evidence in the form of certificate - Appeal allowed.
( 1 ) CRIMINAL Appeal No. 214 of 1991 is preferred by the original accused- gulammohmed Mohmed Yusuf Saiyed under section 374 (2) of the Code of Criminal procedure against the judgment and order of his conviction under Sections 363, 366 and 376 I. P. C. by the learned Additional Sessions judge, Baroda, in Sessions Case No. 126/90. The appellant-accused was convicted for committing an offence punishable under Section 376 IPC and sentenced to suffer R. I for 5 years and to pay a fine of Rs. 1,000. 00 in default to suffer R. I. for three months. He was also sentenced to suffer R. I. for three years and to pay a fine of Rs. 1,000. 00, in default, to suffer imprisonment for one month for committing an offence under Section 366 I. P. C. No separate sentence was imposed for committing the offence under Section 363 I. P. C. Substantive sentences were orderd to run concurrently.
( 2 ) IT was the prosecution case that the accused who was running a Madresa for teaching Urdu and Arabic languages relating to the tenets of Islamic religion between 7. 00 a. m. and 10. 00 a. m. requested his student shahjabanu at about 11-30 a. m. to bring nasimakhatun aged 12 years who also used to attend the Madresa, and committed rape on Nasimakhatun in the kitchen portion of his room after she came there at about 12 noon. The father of the victim Ishrafil Salimbhai ansari lodged his complaint on the same day, i. e. on 20-5-90 with Sayajiganj police station at 18-15 hrs. It also appears that the accused was found to be seriously injured and was admitted to the hospital. After registering the complaint and after recording the statements of certain witnesses as per the say of the complainant and his wife, the police submitted the charge-sheet. Therefter on 17-8-90 the case was committed to the Court of Sessions which framed the charge as under:"at about 11-30 a. m. on 20-5-90 you enticed nasimakhatun minor daughter of the complainant to leave out of the keeping of the lawful guardianship of her father without his consent in order to seduce her to illicit intercourse and thereby committed the offences punishable under Sections 363 and 366 I. P. C. and at the same time on the same day at about 12 oclock, you had committed rape on nasimakhatun against her will and without her consent and thereby committed an offence punishable under Section 376 I. P. C. "
( 3 ) THE accused pleaded not guilty. The learned Addl. Sessions Judge recorded the evidence of prosecution witness No. 1-Pankaj haridas Barai, Professor in Medicinal Science at Exh. 14, the prosecution witness No. 2 - jshrafil Salimbhai Ansari, father of the minor nashimakhatun, Exb. 18. The prosecution witness No. 3-Jamilakhatun Ishrafil, mother of the minor Nashimakhatun, Exh. 23, prosecution witness No. 4-Rukshana Moyuddin, aged 9 years at Exh. 24, prosecution witness no. 5-Shahjabanu Mohmedyasin aged 11, at exh. 25 and the prosecutrix herself P. W. 6- nashima Ishrafil Ansari at Exh. 26. The investigating Officer Kiritikumar Mulshanker joshi was prosecution witness No. 8 whose evidence was recorded at Exh. 30. Panch witness Salimbhai Sheikh whose evidence was recorded at Exh. 28 turned hostile and so the panchnama regarding the scene of offence was not proved.
( 4 ) NO evidence was brought on record regarding the injuries found on the body of the accused and the complaint filed by him or his wife Amina on that very day.
( 5 ) THE learned Sessions Judge after appreciation of the evidence on record, came to the conclusion that the offences under sections 363, 366 and 376 were proved.
( 6 ) IT appears that the accused who was in judicial custody applied twice for legal aid. It appears to be the defence version that a false complaint had been filed against the accused as the complaint regarding severe beating of the accused had already been filed on the same day.
( 7 ) MR. P. J. Yagnik, learned Advocate appearing for the appellant points out certain infirmities and contradictions in the evidence l
