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2002 DIGILAW 513 (MP)

Shakku Shah v. State of M. P.

2002-05-10

AJIT SINGH

body2002
JUDGMENT 1. This judgment will also decide Criminal Appeal No. 425/91 (State of Madhya Pradesh v. Shukku Shah) and Criminal Appeal No. 795/90 (State of Madhya Pradesh v. Shukku Shah). Appellant Shukku Shah was prosecuted for an offence punishable under section 376 of the Indian Penal Code on the allegation that he had sexual intercourse with the prosecutrix Hassan Noor Bi, wife of Banne Khan, aged 30 years, against her consent, in the intervening night of 7/8th July, 1989. Sessions Judge, Sehore, by the impugned judgment dated 10.1.1990 passed in Sessions Trial No. 98/89, although acquitted the appellant from the charge of rape, but convicted him for an offence punishable under section 354 of the Indian Penal Code and sentenced him to undergo one year rigorous imprisonment. The present appeal has been preferred by the appellant challenging his impugned conviction and sentence. The State has also preferred a Criminal Appeal No. 425/91 against the acquittal of appellant under section 376 of the Indian Penal Code. The State has preferred another Criminal Appeal No. 795/90 for the enhancement of sentence of one year awarded to the appellant for an offence punishable under section 354 of the Indian Penal Code by the trial Court. 2. Briefly stated the facts giving rise to this appeal are as under: There is one "Dargah" situated just by the side of Police Station, Jawar, District Sehore, and as such it is popularly known as "Thane Wali Dargah". Appellant has been a care-taker of the said "Dargah" since many years prior to the date of incident, i.e. intervening night of 7/8th July, 1989. 3. Prosecutrix Hassan Noor Bi (PW 3) is a resident of Aastha (Sehore) which is far away from Police Station, Jawar. She had some stomach ailment and on coming to know that the appellant had spiritual healing powers, she approached him for her treatment at "Thane Wali Dargah". Appellant convinced the prosecutrix (PW 3) of curing her on condition that she will have to come to him at "Dargah" on Thursdays in future. Consequently, she met the appellant at "Dargah" on two Thursday prior to the date of incident. On 7 .6.1989 prosecutrix (PW 3) again met the appellant alongwith her husband Ranne Khan (PW 4) at "Dargah" where they set at 2.00 p.m. They were again asked to sit between 5.30 hrs. upto 19.00 hrs at the "Dargah" and thereafter from 21.00 hrs. On 7 .6.1989 prosecutrix (PW 3) again met the appellant alongwith her husband Ranne Khan (PW 4) at "Dargah" where they set at 2.00 p.m. They were again asked to sit between 5.30 hrs. upto 19.00 hrs at the "Dargah" and thereafter from 21.00 hrs. upto 24.00 hrs. During the final hours of sitting at "Dargah", Shaukeen Shah (PW 5), who is a brother-in-law of prosecutrix and a resident of Jawar, was also present. House of Shaukeen Shah (PW 5) is near to "Dargah". At 24.00 hrs. appellant left the' 'Dargah" for food but before leaving he informed the prosecutrix (PW 3) that he will remove her ailment in the house of Shaukeen Shah (PW 5) and for that purpose he asked her to arrange for articles like flowers, purified water, chicken, etc. After sometime, the appellant met the prosecutrix (PW 3) alone in a separate room of the house of Shaukeen Shah (PW 5) while both Shaukeen Shah (PW 5) and husband Banne Khan (PW 4) of prosecutrix were made to wait outside the house. Inside the room appellant, on the pretext of spiritual treatment, influenced the prosecutrix (PW 3) to lift her "Kurti" and then he caught her breasts despite her request to him for not doing so. Appellant thereafter untied the knot of her Paijama and after removing the same had sexual intercourse with her against her consent. After the said act, appellant left the prosecutrix (PW 3) inside the room and went towards cremation ground with a chicken alongwith Banne Khan (PW 4) who was waiting outside. After sometime when Banne Khan (PW 4) returned, prosecutrix (PW 3) narrated the incident to him. Both Banne Khan (PW 4) and Shaukeen Shah (PW 5) went to the house of appellant and enquired from him about the sexual, abuse by him on the prosecutrix (PW 3). Both of them also slapped him. The appellant refuted the allegation and ran away. 4. In the following morning, prosecutrix (PW 3) went to the Police Station, Jawar, District Sehore, and lodged a report against the appellant. C.M. Dwivedi (PW 6), Station Officer of the said Police Station, registered a crime No. 146/89 for an offence punishable under section 376 of the Indian Penal Code and arrested the appellant on 8.7.1989 vide arrest memo, Ex. P-6, Dr. Gayatri Shrivastava (PW 1) examined the prosecutrix (PW 3) at 9.00 a.m. on 8.7.1989. C.M. Dwivedi (PW 6), Station Officer of the said Police Station, registered a crime No. 146/89 for an offence punishable under section 376 of the Indian Penal Code and arrested the appellant on 8.7.1989 vide arrest memo, Ex. P-6, Dr. Gayatri Shrivastava (PW 1) examined the prosecutrix (PW 3) at 9.00 a.m. on 8.7.1989. In her report, Ex. P-1, she has stated that there was no sign of struggle nor she could give any definite opinion about the act of rape as she was habitual of sexual intercourse. Dr. Gayatri Shrivastava (PW 1), however, prepared a vaginal smear slide and a sealed packet of the Paijama of prosecutrix and handed over the same to Police Constable for their chemical examination. Appellant• was also sent for medical examination to Dr. Pradeep Shrivastava (PW 2) who found the following injuries on his person in his medical report, Ex. P-2 : (i) Linear abrasion .2"x.1" size palmer aspect of middle finger. (ii) Linear abrasion .3" x.1" size palmer aspect of ring finger. (iii) Linear abrasion .3" x.1" size palmer aspect of little finger. (iv) Abrasion 1.5"x1" size anterior aspect of right knee. (v) Abrasion 1 "x.8" size anterior aspect of left knee. (All the injuries were simple in nature caused within 6.00 to 12.00 hrs. by a hard and blunt object. No smegma was found on the private organ of appellant.) Dr. Pradeep Shrivastava (PW 2) prepared a sealed packet of the Underwear and Paijama (Articles A1 and A2) of appellant and handed over the same to the Police Constable for their chemical examination. 5. The appellant in his defence pleaded that he is innocent and has been falsely implicated. He, however, during his examination under section 313 of the Code of Criminal Procedure, 1973, admitted to question No.4 that prosecutrix (PW 3) did approach him for the treatment of her stomach ailment. No explanation regarding injuries on his person was given by the appellant. 6. The trial Court, partially relying upon the evidence of prosecutrix (PW 3), although acquitted the appellant from the charge of rape but convicted him under section 354 of the Indian Penal Code for out-raging her modesty. The trial Court also relied, upon the evidence of Banne Khan (PW 4) and Shaukeen Shah (PW 5). 7. 6. The trial Court, partially relying upon the evidence of prosecutrix (PW 3), although acquitted the appellant from the charge of rape but convicted him under section 354 of the Indian Penal Code for out-raging her modesty. The trial Court also relied, upon the evidence of Banne Khan (PW 4) and Shaukeen Shah (PW 5). 7. Shri Amit Dubey, learned counsel for the appellant, challenged the conviction on the ground that trial Court ought to have disbelieved the evidence of prosecutrix (PW 3) totally arid acquitted him even from the offence under section 354 of the Indian Penal Code. In support of his submission, he relied upon the decision of this Court rendered in the case of Ashok Giri v. State of Madhya Pradesh (2002(11) MPHT 55). On the other hand, Shri S.K. Gangrade, learned Panel Lawyer for the State, asserted that the appellant, in fact, should have been convicted under section 376 of the Indian Penal Code as there is overwhelming evidence against him. He also asserted in the alternative that the sentence of one year imprisonment awarded to appellant for an offence under section 354 is too less under the facts and circumstances of the case and hence the same deserves to be enhanced. 8. I have carefully perused the evidence of prosecutrix (PW 3). She has deposed in her evidence that on approaching the appellant for her treatment of stomach ailment he, on the date of incident, influenced her that he would spiritually heal her and remove the ailment in the house of Shaukeen Shah (PW 5). There he, on the pretext of spiritual treatment, influenced her to lift her "Kurti" and on her doing so, he caught hold of her breasts despite her request to him for not doing so. She has further deposed that appellant thereafter untied the knot of her Paijama and after removing the same, he first touched her private part with his hand and then had sexual intercourse against her consent. According to her, appellant had spiritually influenced her so much that she 'could not do anything for herself. It was only when her husband Banne Khan (PW 4) returned after sometime and enquired from her as to why she was sitting so sad in the room, she disclosed the incident to him. According to her, appellant had spiritually influenced her so much that she 'could not do anything for herself. It was only when her husband Banne Khan (PW 4) returned after sometime and enquired from her as to why she was sitting so sad in the room, she disclosed the incident to him. Her statement to Banne Khan (PW 4) that appellant had done a bad act with her has been corroborated by both Banne Khan (PW 4) and Shaukeen Shah (PW 5). Both have also stated in their evidence that they had even gone to the house of appellant and slapped him. Injuries have been found on the person of appellant, as stated above, regarding which he has not given any explanation. On the contrary, he has admitted in his examination under section 313 of the Code of Criminal Procedure that the prosecutrix (PW 3) did approach him for her treatment. Admittedly, both prosecutrix (PW 3) and her husband Banne Khan (PW 4) are residents of Aastha which is quite far away from Jawar and there is no reason for them to falsely implicate the appellant. Apart from this, there is a corroborative evidence also in the form of Forensic Science Laboratory (FSL) Report, Ex. P-8, which confirms the presence of human sperms on the underwear (Article A1) of appellant. The underwear, (Article A1) was seized on 8.7.1989 itself. The said FSL Report, Ex. P8, further confirms the presence of blood on the clothes, (Articles A1 & A2) of appellant and also on the Salwar (Article B) and Vaginal Smear Slide (Article C) of the prosecutrix (PW 3). Here it is not out of place to mention that prosecutrix (PW 3) has stated in her evidence that blood had oozed out of her private part when the appellant did the bad act with her. All these circumstances conclusively prove that the appellant, on the pretext of providing spiritual treatment to the prosecutrix (PW 3) regarding her stomach ailment, outraged her modesty and hence the trial Court rightly convicted him under section 354 of the Indian Penal Code. In the case of Ashok Giri v. State of Madhya Pradesh (supra), this Court gave a finding that the prosecutrix had called for help only when her mother-in-law suddenly entered the room where the accused was having sexual intercourse with her and hence she was a consenting party. In the case of Ashok Giri v. State of Madhya Pradesh (supra), this Court gave a finding that the prosecutrix had called for help only when her mother-in-law suddenly entered the room where the accused was having sexual intercourse with her and hence she was a consenting party. Furthermore, the accused in the said case was staying in the house of prosecutrix with the knowledge of her relations. 9. In the present case, the prosecutrix (PW 3) dis not cry for help as she was badly under the influence of spiritual treatment of appellant despite the fact that her husband Banne Khan (PW 4) was waiting outside the house with Shaukeen Shah (PW 5). It is only after the bad act of the appellant, on enquiry by Banne Khan (PW 4) from the prosecutrix (PW 3), that she disclosed to him about the incident. Thus, the case of Ashok Giri v. State of Madhya Pradesh (supra), does not help the appellant. 10. The trial Court has acquitted the appellant from the charge of rape essentially on the ground that the medical examination report, Ex.-P1, of prosecutrix (PW 3) does not support her allegation of rape against the appellant. According to the learned Judge, although the prosecutrix (PW 3) has stated that blood was oozing out of her private part after the bad act by the appellant, Dr. Smt. Gayatri Shrivastava (PW 1) has not found any blood as alleged. Furthermore, according to Dr. Smt. Gayatri Shrivastava (PW 1), no injury whatsoever was found on the person of prosecutrix (PW 3) although she had stated in her evidence that she did receive injuries on her person. The learned Judge has also given importance to the fact that prosecutrix (PW 3) was medically examined within a very short period of time and yet no sign of sexual intercourse was found on her person despite the fact that she had not washed herself. On due consideration of the aforesaid reasonings of learned trial Judge for acquitting the appellant from the charge of rape, I do not find any justification in interfering with the said finding. 11. Now, coming to the question of sentence, the learned counsel for the appellant has asserted that the appellant has already undergone five months of imprisonment and now since much time has elapsed, there will be no justification in sending him to jail again. 11. Now, coming to the question of sentence, the learned counsel for the appellant has asserted that the appellant has already undergone five months of imprisonment and now since much time has elapsed, there will be no justification in sending him to jail again. The learned counsel has further argued that because of the conviction, the appellant has already lost his credibility and he has been removed from being a care-taker of' 'Thane Wali Dargah" which itself is a sufficient punishment for him. On the other hand, the learned Panel Lawyer for the State has argued that looking to the conduct of appellant, his jail sentence deserves to be enhanced. On due consideration, I am of the opinion that since the incident took place in the year 1989 and now almost 13 years have elapsed, I do not find that any useful purpose would be served in sending the appellant back to jail especially when he has already undergone five months of imprisonment out of total one year jail sentence awarded to him. Instead, I direct that the appellant be sentenced to rigorous imprisonment for five months, a period which he has already undergone, and a fine of Rs. 3,000/- and in default of fine to suffer further rigorous imprisonment for a period of five months. I further direct that on the recovery of total fine of Rs. 3,000/- from him, the said amount should be made over to the prosecutrix (PW 3) by way of compensation. For the foregoing reasons, the appeal filed by the appellant against his conviction and sentence is allowed in part.