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Mohammad Sahibjan @Bhura … vs The State Of M.P. on 4 April, 2018

CRA No. 627/2005
1

HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
Hon’ble Shri Justice Subodh Abhyankar, J

Criminal Appeal No. 627/2005
Mohammad Sahib Jan Alias Bhuar Ali Alias Chhotkawa
Vs.
The State of M.P.
————————————————————————-
Shri B.R. Vijaywar, learned counsel for the appellant as
amicus curiae.

Shri Manish Awasthi, learned GA for the
respondent/State.

————————————————————————–
JUDGMENT

(Delivered on the 4th day of April, 2018)

1. This criminal appeal has been filed by the appellant under

Section 374(2) of the Code of Criminal Procedure arising out of

order dated 09.03.2005 passed by the Third Additonal Sessions

Judge, Fast Track Court, Sidhi in S.T.No.04/2005 whereby the

learned Judge finding the appellant guilty under Section 376(1)

of the IPC sentenced him to undergo seven years R.I. with

default clause.

2. In brief the story of the prosecution is that on 30.11.2004

when the prosecutrix P.W.2 was alone at 3’O clock in the noon,

appellant Bhuar alias Sahib Jan came and raped her and when
CRA No. 627/2005
2

she raised an alarm, her neighbour Halima came there and at

that time, appellant ran away from the spot. Afterwards when

her mother Saliman came in the evening, the presecutrix

narrated her the incident and subsequently her father was also

informed when he came back in the eveningh. The FIR was

lodged by the prosecutrix on the other day i.e. on 30.11.2004.

which was recorded by sub inspector Shri G.K. Tiwari (P.W.10).

She was sent for medical examination and was examined by

Dr. Babita Khare (P.W.6), who gave her report Ex.P/5 regarding

the age of the prosecutrix. She has stated that the age of the

prosecutrix was above 19 years.

3. In defence, appellant’s contention is that he has been

falsely implicated in the case and he was not at home when the

incident took place. In his defence, D.W.1 Mohammad Mohit

and D.W.2 Ghulam Mohammad have also been examined by

him.

4. Learned counsel for the appellant has submitted that the

appellant has been falsely implicated in this case. Prosecutrix

was major at the time of the incident and it is a case of mutual

consent. It is further submitted that the prosecutrix is in the

habit of falsely implicating the persons for her personal gains as

she is of bad character.

5. On the other hand, leaned counsel for the respondent has

opposed the appeal and has submitted that no illegality has
CRA No. 627/2005
3

been committed by the learned Judge of the trial Court in

convicting the appellant.

6. Heard, the learned counsel for the parties and perused

the record.

7. So far as the medical evidence in the present case is

concerned, the prosecutrix has been examined by Dr. Babita

Khare (P.W.6) who has opined that the prosecutrix was subject

to intercourse but she was not accustomed to it, however, she

has stated that her age was above 19 years and also that

prosecutrix had informed her that she had earlier married and

had also given birth to a child. Thus, from the aforesaid

deposition it can be inferred that the prosecutrix was not under

age, she was subjected to intercourse but was not accustomed

to it.

7. P.W.1 Haleema, who happens to be the neighbour of the

prosecutrix has not supported the case of the prosecution. In

fact she has stated that the prosecutrix is of loose character

and has many relationships with many persons of the village.

She has also stated that the prosecutrix has extorted money

from other persons as well.

8.. The prosecutrix has been examined as P.W.2. She has

deposed that on the date of the incident, at around 2’O Clock in

the afternoon, the appellant came to her house and raped her
CRA No. 627/2005
4

biut when she raised an alarm, her neighbour Haleema (P.W.1)

came to her house and the appellant ran away from the spot. In

the evening, she informed her mother regarding the incident.In

her statement, prosecutrix has stated that when her father

came in the night at around 8’O Clock, only then she lodged a

report on the other day, at around 11’O Clock. She has

admitted that earlier she was married to one Abdul Khaleel

when she was a minor. She has denied that she had a baby girl

out of this wedlock. She has admitted that she solemnized

second marriage with one Rafik Mohammad. She has denied

the suggestion made to her that she had lodged report at police

station Bargawa against one Ali Mohammad. She further

denied that thereafter she obtained Rs.5,000/- from the village

Panchayat. She has also denied that similar report was lodged

by her against Mohammad Shahid and she also took

Rs.5,000/- from him and got the matter closed. In her cross-

examination, she has admitted that the appellant happens to be

her distant brother. Although, in support of the suggestions

made to the prosecutrix, no documentary evidence has been

produced by the appellant.

9. Saliman has been examined as P.W.3. She is the mother

of prosecutrix. Dil Mohammed has been examined as P.W.4..

He is the father of the prosecution. They have narrated the

same facts as have been narrated by the prosecutrix.

CRA No. 627/2005
5

10. During the course of the trial, FSL report has been

received from FSL, Sagar in which it is stated that on article A,

which is underwear of the prosecutrix, stains of human semen

were found although the same were not sufficient for serum

test.

11. So far as the defence witnesses are concerned,

Mohammad Mohit has been examined as D.W.1. He has

deposed mainly regarding the character of the prosecutrix and

has also brought on record Ex.D/4, which is a certificate issued

by Anjuman Committee, but its veracity is highly doubtful

because the Anjuman Committee is no legal body and it is also

not registered.

12. D.W.2 Gulam Mohammad has stated that the prosecutrix

got married with his son Abdul but subsequently, he divorced

her due to her loose character and it is also submitted by him

that the prosecutrix again married with one Rafik Mohammad

and only on account of her loose character, now she resides at

her parental home.

13. After a close scrutiny of the record, the statements made

by the prosecutrix as also the other witnesses including Dr.

Babita Khare (P.W.6) and considering the FSL report, this Court

is of the considered opinion that the prosecution has been able

to prove its case beyond reasonable doubt and no benefit of

the infirmities of the prosecution case can be extended to the
CRA No. 627/2005
6

appellant/accused. P.W.6 Dr. Babita Khare’s deposition

assumes importance when she says that the prosecutrix is not

habitual to intercourse, hence, in such circumstances, it is

difficult to hold that the prosecutrix is lying about her ordeal of

rape.

Consequently, the appeal is hereby dismissed.

As per rules.

(Subodh Abhyankar)
JUDGE

Vikram

Digitally signed by VIKRAM
SINGH
Date: 2018.04.05 13:28:21
+05’30’

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