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Habib Khan And Anr. vs The State Of M.P. on 28 August, 2018

1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P GUPTA)

Criminal Appeal No. 73 /1998
Habib Khan another
Vs.
State of Madhya Pradesh

Shri H.S Dubey, learned senior counsel with Shri Abhinav Dubey,
learned counsel for the appellant.
Ms. Shobhana Sharma, learned P.L for the respondent/State.

JUDGMENT

{ 28/08/2018 }

Per J.P.Gupta, J :

This appeal has been preferred assailing the
judgment dated 29/12/1997 passed by the 2nd Additional Session
Judge, Seoni, in Session Trial No.160/1996 whereby the appellant
no.1 Habib has been convicted under section 376 of IPC and
sentenced to undergo R.I. for 7 years, along with fine of
Rs.1000/- and appellant no.2 Shabbir Khan has been convicted
under section 363 of IPC and sentenced to undergo R.I for 4
years along with fine of Rs.1000/- with default stipulations.

2. Another co-accused Ram Singh has also filed Criminal
Appeal no.506/1998 before this Court, which was dismissed on
21/11/1999 as before the final hearing, he completed period of his
jail sentence.

3. The facts giving rise to this appeal are that as per
prosecution case on 14/09/1996 the prosecutrix, aged 14 years
2

was coming back after grazing she goats. In the way, the
appellants and co-accused Ram Singh met her and appellant
Habib asked her that he wanted to marry with her. He will keep
her well and will provide good food and clothes and other co-
accused persons also supported the appellant Habib and co-
accused in pretext of marriage with the appellant Habib took her
in the house of appellant Habib and other co-accused left them.
In the night appellant Habib committed sexual intercourse with
the prosecutrix despite of her resistance on the point of knife
and in the morning other co-accused person came to the house
of appellant Habib and the appellant getting information about
the report made by the father of prosecutrix left her near the
house of matrimonial aunt of prosecutrix namely Munni Bai,
then she went to the house of Munni Bai and told her about the
incident. Her parents and brother also came in search of her at
the house of Munni Bai, where she revealed all the facts and
went to police station Keolari District Seoni and lodged FIR Ex.P-
7 where Crime No.92/1996 was registered and she was examined
by Dr. Smt. K. Dehariya (PW-5) and for the determination of her
age, ossification test was also conducted. During the
investigation from the spot broken pieces of bangle were
collected and one bangle wear by the prosecutrix was also
seized. Virginal swab and clothes were also seized and accused
persons were arrested and medically examined.

4. After completion of the investigation, the charge
sheet was filed against the accused persons with regard to
commission of offence under section 366 and 376 of IPC before
the Judicial Magistrate First Class, Seoni and the case was
3

committed to Session Court where the case was tried by 2 nd
Additional Session Judge, Seoni and framed charges against all
accused persons under section 366 of IPC and also under section
376 of IPC against appellant Habib. The accused persons abjured
their guilt and claimed to be tried. Their defence was that they
are innocent and the prosecutrix was major at the time of
incident and she was consenting party and marriage of the
prosecutrix was fixed with the appellant Habib but the father
was demanding money and on refusal of the demand, quarrel
was taken place and false report was lodged. In defence
evidence of Diljahan Khan (DW-1) and Ram Chand (DW-2) were
recorded and after completion of the trial, the learned trial court
convicted and sentenced the appellants as mentioned earlier.

5. The findings of the learned trial court has been
assailed in this appeal on the ground that the learned trial court
has relied on the entry of birth register kept in the office of
Collector, Seoni Ex.P-17 but in the entry register there is no name
of father of the child. Only name of mother is recorded and
mother of the prosecutrix has not been examined. There may be
other lady in the village of the same name. Father of prosecutrix,
Kasim Ali (PW-4) has not stated that the entry was made on the
basis of information given by him. In the circumstance, about the
entry in register Ex.P-17, it can’t be said beyond the reasonable
doubt that the same is relating to the date of birth of the
prosecutrix. So far as opinion of medical expert is concerned,
age of the prosecutrix may be 17 years. Hence merely on the
statement of Kasim Ali (PW-4), it can’t be determined that at the
time of the incident, the prosecutrix was below 16 years as
4

Kasim Ali (PW-4) is unable to disclose actual date, month and
year of birth of the prosecutrix. He also unable to disclose date
of birth of any children. Statement given on guessing age of the
prosecutrix have no much credibility. Therefore in the case the
prosecution has failed to prove the age of the prosecutrix
beyond the reasonable doubt. Further contended that it is a case
of consensual sexual intercourse as reflected from the whole
statement of prosecutrix and other surrounding circumstance.
Therefore, the findings of learned trial court are illegal,
erroneous and contrary to law. Thus the conviction and sentence
of the appellants be set aside and they be acquitted.

6. Learned PL has supported the findings of the learned
trial court and opposed the aforesaid contentions of the learned
counsel for the appellant stating that the findings of the learned
trial court are based on sound evidence. Hence no interference is
required in the findings of the trial court and prayed for rejection
of this appeal.

7. Having considered the contention of learned counsel
for the parties and on perusal of the record, in view of this Court
the finding about commission of intercourse by the appellant
Habib with the prosecutrix does not require any interference as
this fact has been proved by the prosecution by statement of
prosecutrix (PW-1) supported by FIR Ex.P-1 and statement of
father Kasim Ali (PW-4) and F.S.L report Ex.p-18 and there is
nothing on record to discard the aforesaid finding.

8. The aforesaid sexual intercourse committed by
appellant Habib without the will and consent of the prosecutrix
is not found to be proved as in the FIR the prosecutrix (PW-1) has
5

stated that the appellant Habib told her that he wants to marry
her and he will keep her well and will also provide good food and
clothes and believing on him, she went with the appellant and
another co-accused Ram Singh to the house of accused Habib.
However during the trial, the prosecutrix stated that accused
persons took her showing knife and given threat to kill her but
this fact has not been disclosed in the FIR. The prosecutrix has
stated that when appellant Habib was advancing to commit sex
with her she resisted and shown her unwillingness but the
accused Habib shown knife and committed sexual intercourse
with her till morning. In the FIR she has stated that at the time of
committing sexual intercourse accused Habib shown knife and
threaten her to kill however she resisted but in the court
statement she has not narrated this fact. She also stated that in
the fateful night in the shuffle with accused Habib her bangle
was broken and caused injury to her, but Dr. Smt. K Dehariya
(PW-5) has stated that there was no mark of resistance was
found by her on the body of prosecutrix and she was habitual of
sexual intercourse and her hymen was old rupture.

9. Further prosecutrix has stated that she was left by
accused persons near the house of maternal aunt Munni Bai and
told about the incident to her but prosecution has not examined
Munni Bai. In defence, husband of Munni Bai, Diljahan Khan (DW-

1) has been examined. He stated that on the date of incident
prosecutrix came to his house but she disclose nothing about
the incident to his wife and to him. Parents and brother of
prosecutrix came to his house and took her. Ram Chand (DW-2)
has stated that in the village people know that prosecutrix
6

remained with the accused Habib and there was talk about her
marriage with the accused Habib and the prosecutrix’s father
took Rs.2000/- from the accused Habib. Later on the father of
prosecutrix demanded Rs.2000/- more but the father of
appellant Habib refused the demand and then the father of
prosecutrix threaten him that if he will not pay money, he would
implicate him falsely. In the aforesaid circumstance, possibility of
consenting of prosecutrix with the accused Habib with regard to
sexual intercourse can’t be ruled out and it can’t be said that
prosecution has established the fact that appellant Habib
committed sexual intercourse with the prosecutrix without her
will or consent, which is necessary ingredient of the offence of
rape with the women of age of more than 16 years. Hence in
view of the aforesaid discussion, the finding of commission of
rape by the appellant Habib with the prosecutrix is not found to
be established beyond the reasonable doubt.

10. So far the finding of conviction of the
appellants under section 363 of IPC is concerned, statement of
prosecutrix (PW-1) and Kasim Ali (PW-4) established the fact that
prosecutrix was taken away by the appellants and co-accused
Ram Singh without the consent of father of prosecutrix, Kasim
Ali (PW-4) and at the time of incident, age of the prosecutrix was
below 18 years. In this regard their statement also got support
from the medical opinion of Dr. Mohan Singh (PW-2), who has
stated that on 29/10/1996 after ossification test he found that
age of the prosecutrix was between 14 to 17 years. In the cross
examination he stated that upper limit was 17 years and lower
limit was 14 years. Kasim Ali (PW-4) who is father of prosecutrix
7

has guessed age of the prosecutrix on the basis of age of other
children near about 14 years and at the time of recording of
court statement also estimated age of prosecutrix near about 14
years. Dr. Smt. K Dehariya (PW-5) has estimated age of the
prosecutrix near about 14 years. In the circumstance, the age
determined after ossification test which support the statement
of aforesaid witnesses may be considered and in the light of
aforesaid circumstance, the opinion of medical expert with
regard to higher side is considerable without adding further
years as a margin of error. In other words, the prosecutrix age at
the time of incident was near about 17 years and below 18 years.
Hence, on the date of incident the prosecutrix was minor and
she was taken away from the legal custody of her father without
his consent. Therefore, the appellants’ conviction under section
363 of IPC not require any interference.

11. In view of the aforesaid discussion, the
appellant Habib conviction and sentence under section 376 of
IPC is set aside and he is acquitted of the aforesaid charge. So far
as appellants conviction under section 363 of IPC is concerned, it
is upheld. During the trial, the appellant no.1 Habib have
remained in custody from 19/09/1996 to 13/06/1997 and appellant
no.2 have remained in custody from 19/09/1996 to 30/05/1997
and thereafter from the date of judgment ie 29/121997 to
28/02/1998. So far their sentence part is concerned, looking to
the circumstance of the case and the fact that appellant Habib
has got married with the prosecutrix on 16/08/1998 and living
peacefully as husband and wife and appellant no.2 Shabbir is
also relative and on behalf of prosecutrix compromise petition
8

has been filed. Looking to the aforesaid circumstance and the
fact that appellants are facing the proceeding since 1996, no
useful purpose will be served by sending them further into
custody, hence their period of sentence is reduced to already
undergone jail sentence by the appellants. Accordingly, this
appeal is partly allowed. The appellants are on bail, their bail
bonds be discharged, if they are not required in any other case
they be released forthwith.

A copy of this judgment be sent to the concerned trial
court for information and necessary action.

Certified copy as per rules.

(J.P Gupta)
JUDGE

TARUN
Digitally signed by TARUN
tarun KUMAR SALUNKE
DN: cIN, oHigh Court of
Madhya Pradesh,

KUMAR
ouAdministration,
postalCode482002,
stMadhya Pradesh,
2.5.4.2019a265290eb7f6307d

SALUN
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serialNumber0e7afab970b52
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KE
26cbffd08773a847c03d3115c,
cnTARUN KUMAR SALUNKE
Date: 2018.08.28 14:39:37
+05’30’
9

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P GUPTA)

Criminal Appeal No. 73 /1998
Habib Khan another
Vs.

State of Madhya Pradesh

JUDGMENT

Post for : __/08/2018

(J.P.Gupta)
Judge
__/08/2018

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