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Madhya Pradesh High Court · body

2009 DIGILAW 615 (MP)

Hameeda @ Hameed Khan v. State of M. P.

2009-05-07

A.K.SHRIVASTAVA

body2009
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 24.5.2002 passed by the learned 12th Additional Sessions Judge (Fast Track Court), Gwalior, in Session Trial No. 61/2000 convicting the appellant under section 376 of IPC and thereby sentencing him to suffer seven years rigorous imprisonment with a fine of Rs.2,000/-and in default, further rigorous imprisonment of one year, this appeal has been filed under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that complainant Shahjad Khan along with his daughter, who is the prosecutrix in the case, lodged the first information report against the appellant that 8-10 days earlier to the lodging of FIR he committed rape over the prosecutrix. 3. According to the prosecution, the prosecutrix is a minor girl, her statement was recorded and she was sent for medical examination. Lady doctor Ram Devi Pawar examined the prosecutrix who found the hymen of the prosecutrix to be ruptured and opined that intercourse has taken place with her. 4. After the investigation, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for its trial. 5. Learned trial Court framed the charge under section 376 of IPC against the appellant which he denied and requested for the trial. 6. In order to prove the charge of section 376 of IPC, prosecution examined as many as 9 witnesses and placed Ex. P-1 to Ex. P-5, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement under section 313 of CrPC. In support of his defence, he examined Babli (DW 1), Haribabu (DW 2), Baresingh (DW 3), Jagdish Singh (DW 4) and Haseena (DW 5). The learned Trial Judge on the basis of the evidence placed on record came to hold that charge under section 376 of IPC has been proved against the appellant and eventually convicted him and passed the sentence, which I have mentioned hereinabove. 7. In this manner, the present appeal has been filed by the appellant. 8. The contention of the learned counsel for the appellant is that looking to the testimony of the prosecutrix, the learned trial Court erred in convicting him under section 376 of IPC. 7. In this manner, the present appeal has been filed by the appellant. 8. The contention of the learned counsel for the appellant is that looking to the testimony of the prosecutrix, the learned trial Court erred in convicting him under section 376 of IPC. An alternative submission has been put forth by him that in Sessions Trial No. 181/88 under section 302/34 of IPC, the appellant is undergoing the sentence and in instant case, his formal arrest was made from the Central Jail, Gwalior, and therefore, the jail sentence of 7 years be also computed along with the sentence which he is undergoing in Sessions Trial No. 181/88 under section 427 of CrPC. 9. On the other hand, Shri Dixit, learned Public Prosecutor for the respondent/State, argued in support of the impugned judgment. 10. Having heard the learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. 11. On going through the statement of the prosecutrix, it is gathered that the wife of the appellant was admitted in the hospital for delivery and the prosecutrix was brought by the appellant at his house because his wife was in the hospital. The appellant is the maternal uncle of the prosecutrix. According to the prosecutrix, in the night when she was sleeping, the appellant committed rape over her and while committing rape, blood came out from her private part. On the next day in the morning, his father Shahjad Khan came to the house of the appellant. At, that juncture, she was weeping. On being asked by her father, she stated that she is feeling pain in her abdomen. On account of shyness, she did not say the vile act committed by the appellant. Thereafter, when she came to Sujpura at the house of her Bua (paternal aunt) Subratan, she narrated the entire incident to her and her paternal aunt thereafter told his father about the incident and thereafter the report was lodged. This witness was cross-examined at length, but she remained embedded in her version despite there being a roving cross-examination over her. On going through her testimony, I am of the view that her testimony is clear, cogent and trustworthy and the learned Trial Judge did not commit any error by placing reliance on her testimony. 12. This witness was cross-examined at length, but she remained embedded in her version despite there being a roving cross-examination over her. On going through her testimony, I am of the view that her testimony is clear, cogent and trustworthy and the learned Trial Judge did not commit any error by placing reliance on her testimony. 12. The testimony of the prosecutrix is also medically corroborated, as lady doctor Ram Devi Pawar (PW 9) by examining prosecutrix found that her hymen was torn and further opined that sexual intercourse took place with her. According to the lady doctor, the breasts as well as nipples of the prosecutrix were not developed. The lady doctor proved the medical report Ex. P-4A. Further, it has been stated by the lady doctor that in her report she opined that hymen has ruptured on account of intercourse because if the hymen is ruptured on account of fall from bicycles etc., it would be an irregular rupture. But, the rupture of the hymen of the prosecutrix was not irregular. It has also been stated by the lady doctor in para 6 of her cross-examination that the symptoms of committing rape over her were of 10 days earlier to the date of examination. Indeed, first information report was also lodged after 10 days of the commission of the offence and on the same day the prosecutrix was sent for medical examination, therefore, the evidence of the lady doctor also corroborates the statement of the prosecutrix that 10 days earlier of lodging the FIR, the rape was committed by the appellant. 13. The prosecutrix was radio logically examined by the radiologist Dr. Padam Singh (PW 1) and he after taking necessary x-ray of the prosecutrix, opined that the age of the prosecutrix on the date of examination i.e. 4.1.2000 was below 16 years. The father of the prosecutrix as well as Subratan Bai (PW 6), who is the paternal aunt of the prosecutrix, has stated that the prosecutrix is a minor girl. Subratan Bai (PW 6) has stated that the prosecutrix has been brought up by her from the age of 8 years. One important fact which is relevant to mention here that this lady was the wife of the appellant. True the appellant has abandoned her for last 9 years. Learned trial Court in para 17 gave a finding that the prosecutrix is a minor girl. One important fact which is relevant to mention here that this lady was the wife of the appellant. True the appellant has abandoned her for last 9 years. Learned trial Court in para 17 gave a finding that the prosecutrix is a minor girl. I have also gone through the reasonings assigned by the learned trial Court and I find that the said reasonings are based on correct appreciation of evidence. 14. Thus, I am of the view that the trial Court did not commit any error in convicting the appellant under section 376 of IPC and thereby sentencing him to suffer the imprisonment as mentioned in the impugned judgment. 15. However, on going through the impugned judgment para 2, this Court finds that the appellant was undergoing the sentence for the offence under section 302/34 of IPC and he was formally arrested in the present case from Central Jail, Gwalior. This Court on 1.8.2003 allowed the bail application of the appellant, but on account of undergoing the sentence in other case, he was not released from the jail. On going through the order-sheet dated 23.4.2008 of this Court, it is gathered that after completion of the jail sentence in other case, the appellant was released from the j ail. In this view of the matter, in case the appellant has already suffered the sentence awarded by the trial Court while undergoing the jail sentence in Sessions Trial No. 181/88, the jail sentence passed in this case shall run concurrently in view of section 427 of CrPC. However, in case the entire sentence has not been undergone by the appellant while undergoing the jail sentence in Sessions Trial No. 181/88, the appellant shall be arrested and sent to jail for undergoing the remaining part of the sentence. The learned trial Court is hereby directed to do the needful in this regard. The registry is hereby directed to send the record to the learned trial Court posthaste. The learned trial Court after going through the record and after calling the requisite report from the jail authorities may pass suitable order and send the report to the Registry of this Court. 16. With the aforesaid observations, this appeal is dismissed.