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.
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Shri B.R. Vijaywar, learned counsel for the appellant as
amicus curiae.
Shri Manish Awasthi, learned GA for the
respondent/State.
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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
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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
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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
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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.
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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
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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’