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2011 DIGILAW 1560 (PNJ)

Sadiq Ali alias Babbu v. State of Punjab

2011-08-11

A.N.JINDAL

body2011
JUDGMENT Mr. A.N. Jindal, J (Oral) - This judgment shall dispose of Crl. Appeal Nos. 808 and 821-SB of 2003, as both have arisen out of the same judgment. For reference, facts are taken from Criminal Appeal No. 808-SB of 2003. 2. These appeals are directed against the judgment dated 16.04.2003 passed by the Additional Sessions Judge, Fatehgarh Sahib, whereby accused-appellants (hereinafter referred to as ‘the accused’), were convicted under Sections 376, 450, 354 IPC and were sentenced as under:- ---------------------------------------------------------------------------------------------------------------------------------- 1. Under Section 376 IPC : R.I. for 10 years each and to pay fine of Rs.1000/- each. 2. Under Section 450 IPC : R.I. for 3 years each and to pay fine of Rs.500/- each. 3. Under Section 354 IPC : R.I. for one year each. ---------------------------------------------------------------------------------------------------------------------------------- 3. The prosecution story, in nutshell, is that on 26.07.1999 at about 8.00 P.M., when the prosecutrix was preparing meals and her aunt Gurdev Kaur (who is blind) was in the bathroom, accused Sadiq Ali @ Babbu and Rajinder Singh @ Pinky entered their house. Accused Babbu caught hold of her arms and accused Pinki started pulling her breast. Thereafter, Pinki tore out her shirt and then both of them pulled her ‘salwar’. Both the accused got her fallen on the ground. On raising hue and cry, her aunt Gurdev Kaur came out of the bathroom. But, the accused continued gagging her mouth and the accused Pinki, with an intention to commit sexual intercourse, laid over her. On raising hue and cry by Gurdev Kaur, Baljinder Singh arrived at the spot. Consequently, both the accused fled away. The case was registered on 10.08.1999 and was investigated. On completion of the investigation, challan against the accused was presented in the Court. 4. On commitment, both the accused were charged for the offences under Sections 376 (2) (g), 450 and 354 IPC, to which they pleaded not guilty and claimed trial. 5. In order to substantiate the charges, the prosecution examined Karamjit Kaur (PW-1), Gurdev Kaur (PW-2), ASI Sher Singh (PW-3), ASI Rawel Singh (PW-4), ASI Gurdev Singh (PW- 5), Om Parkash Sachdeva, draftsman (PW-6), Smt. Kusam Gautam (PW-7), Dr. Ram Lubhaya (PW-8), constable Sat Pal (PW-9) and SI Kashmira Singh (PW-10). 6. When examined under Section 313 Cr.P.C., both the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Ram Lubhaya (PW-8), constable Sat Pal (PW-9) and SI Kashmira Singh (PW-10). 6. When examined under Section 313 Cr.P.C., both the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In defence, they examined Ajmer Kaur (mother of accused Rajinder Singh) and Shehnaz (wife of accused Sadiq Ali). The trial resulted into conviction. Arguments heard. Record perused. 7. Concededly, it was not a case of rape, but the trial Court appears to have not gone into the allegations, the charges and the evidence and illegally, erroneously and without application of mind convicted the accused persons under Section 376 IPC. Mr. Baljinder Singh Sra, Additional Advocate General, Punjab, has also not disputed the fact that there was no charge or evidence against the accused for the offence under Section 376 IPC, but the Court has acted in erroneous belief while taking it as a case of rape. 8. As regards the offence under Section 450 of the IPC, the learned counsel for the accused has urged that since the accused had not committed an offence punishable with imprisonment for life, therefore, Section 450 IPC also cannot be attracted. 9. This argument has also not been challenged by learned Additional Advocate General, Punjab. The prosecution has neither levelled allegations regarding rape of the prosecutrix nor the prosecutrix as ever stated that the accused had committed rape upon her. Even no injury was suffered by her at the hands of the accused. Therefore, no offence under Section 450 IPC is made out. 10. On perusal of the testimonies of Karamjit Kaur (PW-1) and Gurdev Kaur (PW-2), it appears that the accused had used force while assaulting the prosecutrix and tearing out her clothes. Therefore, at the most, the offence under Section 354 IPC is made out. There is no medical evidence with regard to any injuries allegedly suffered by the prosecutrix at the time of outraging her modesty. The delay in lodging the FIR appears to have resulted into making exaggerations regarding the removing of the ‘salwar’ by the accused and falling upon her. The occurrence in this case took place on 26.07.1999 at 8.00 P.M., whereas the FIR was recorded after 14 days, therefore, embellishments and exaggerations were bound to occur. The delay in lodging the FIR appears to have resulted into making exaggerations regarding the removing of the ‘salwar’ by the accused and falling upon her. The occurrence in this case took place on 26.07.1999 at 8.00 P.M., whereas the FIR was recorded after 14 days, therefore, embellishments and exaggerations were bound to occur. However, the testimony of the prosecutrix qua the assault by use of physical force upon her at the hands of the accused, cannot be disbelieved. She is a young girl, 13 years of age. The evidence also reveals that the accused went to the house of the prosecutrix when her aunt was taking bath in the house; pounced upon her and tore her clothes. The accused could not take the law into their hands while misusing their muscle power and tearing her clothes and pulling her breast. As such, offence under Section 354 of the IPC stands established against both the accused. 12. Resultantly, I partly accept both the appeals, set aside the impugned judgment and acquit them of the charges framed against them under Sections 376 and 450 IPC, whereas, conviction recorded against both the accused under Section 354 IPC is ordered to be maintained with modification in the sentence to that of already undergone by them. The accused are, however, further directed to pay a fine of Rs.5000/- each under Section 354 IPC. 13. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Fatehgarh Sahib, for compliance.