Syed Youns Quadri vs The State

K.N. Phaneendra, J.

The appellant being the accused before the Fast Track Court-II, Raichur, in S.C. No. 153/2006, was convicted for the offences punishable under Sections 366 and 376 of IPC and sentenced to undergo R.I. for a period of 10 years and to pay fine of Rs. 10,000/- and the sentences were ordered to run concurrently. The said judgment of conviction and order of sentence is challenged before this Court, in this appeal.

The records disclose that the accused was arrested on 19.08.2006 and since then, he has been in judicial custody.

The case of the prosecution in brief is that, a person by name Majid Khan, son of Rehman Khan has lodged the first information report on 16.08.2006 as per Ex. P1, which was registered in Crime No. 173/2006 by Sardar Bazaar Police, Raichur, for the offence punishable under Sections 366 of IPC.

The allegations made in the first information report are that, the first informant has a daughter and four sons. The daughter Kum. Shagufta Khanam was aged about 22 years and in fact, she was suffering from some mental ailment. The appellant/accused has claimed himself as a special person and he has got some extraneous power so that he can treat such persons who are suffering from mental ailments and remove adverse attack on such persons. By saying so, he stayed in the house of the complainant from 13.08.2006 and in fact, he made lot of predictions and assurances to cure the problem of the daughter of the complainant. In this background, it is said that on 16.08.2006, the accused abducted the victim-girl and thereafter, the victim-girl and the accused/appellant went to several places and during that span of time, the accused/appellant committed rape on the victim-girl.

The victim-girl has stated before the police that from 16.08.2006, the appellant took her to several places on his motor cycle particularly to Lmgasugur and where, in a room at Rohit Lodge, he committed rape on her. On the basis of her statement, the police have registered a case against the appellant/accused for the offence punishable under Sections 366 and 376 of IPC and after due investigation, they laid the charge sheet against the accused for the above said offences.

The prosecution in order to bring home the guilt of the accused, examined as many as 16 witnesses as PWs. 1 to 16 and got marked Exs. P1 to P23 and MOs. 1 to 13. During the course of the examination of some of the defence witnesses, Exs. D1 to D5 were also marked. After hearing the arguments, as the accused did not chose to lead any oral evidence, the learned Sessions Judge recorded the impugned judgment of conviction and order of sentence, as noted above.

PW. 1: M.A. Masjeed Khan (complainant) is the father of the victim-girl; PW. 2-Shagufta Khanam is the victim-girl; PW. 3-Md. Wasjid is the spot panch as per Ex. P2; PW. 4-Shakeel Ahmed is also another panch for recovery of MOs. 1 to 9 from the accused and PW. 5- Basavalingayya is the person who produced the register - Ex. P4 of Rohit Lodge, where the accused and the victim-girl were stayed for some days and PW. 6-Mallikarjuna is the spot panch pertaining to Room No. 5 of Rohit Lodge of Lmgasugur; PW. 7-Ghouse Pasha is PC No. 502, who arrested the accused; PW. 8-Shaik Chand is PC. No. 384, who carried the FIR and delivered the same to the jurisdictional Magistrate; PW. 9-Dr. Narayana Pendlikar is the important witness, who examined PW-2 (victim-girl) and issued Ex. P8-Medical Certificate and Ex. P9-FSL Certificate; PW. 10-Dr. T.K. Jagajivan Ram is the person, who examined the accused and issued Ex. P12 and there is no dispute so far as this aspect is concerned; PW. 11-Mehaboob Sab is the formal witness, who repaired the motor cycle of the accused; PW. 12-Yellappa is the panch to the seizure of the motor bike of the accused; PW. 13-Ashok, son of Yellappa, is the owner of Grocery Shop; PW. 14-Ahmed Pasha is a police constable, who carried the seized articles to the FSL Authority; PW. 15-T. Manjunath and PW. 16-M. Pasha are the Investigating Officers.

In my opinion, in this case, the important witnesses examined before the Court are the father, mother and brothers of the victim-girl. They have categorically stated about the conduct of the accused regarding he going to their house, taking the victim-girl along with him on 16.08.2006 and thereafter committing rape on her in a room of Rohit Lodge situated at Lmgasugur. Though the brothers are not the eyewitnesses to the incident, they came to know about the incident through the victim-girl. The Doctor examined as PW. 9 has categorically stated on 19.08.2006 he examined the victim-girl and found no injuries on any part of her body. He has specifically stated that hymen of the victim-girl was ruptured and it was fresh in nature. He gave opinion that though there was evidence of sexual intercourse, but there was no evidence of forcible sexual intercourse. The evidence of the Doctor has to be taken into consideration along with the evidence of the victim-girl. The victim-girl has categorically stated that the accused on the assurance of curing her ailment took her to several places particularly to the Rohit Lodge at Lingasugur and persuaded her and thereafter, even against her wish and will, he had sexual intercourse with her. When such being the case, the Doctor, in my opinion, is not a competent person to say whether there was any rape or not. It is the legal term which has to be decided by the Court and the Doctor has to say only what are all the injuries found on the person of the victim-girl and whether she was subjected, to sexual activity or not. On such opinion of the doctor, the rest of the matter shall be tested on the basis of the other evidence available on record.

On Perusal of the cross-examination of the victim-girl (PW. 2), it is noticed that there is not even a suggestion made to her that, accused has taken her and she accompanied him on her own wish and she was a consenting party to the sexual act committed on her by the accused. There was a total denial of the prosecution to the case by the accused. It is the defence of the accused that in order to wreck vengeance, a false case has been foisted against him. If he is not known to the family of the victim-girl and he was not conversant with the family of the complainant earlier to the incident, why he should unnecessarily be foisted in the case under Sections 376 or 366 of IPC is not forthcoming in the evidence. Therefore, the evidence of the victim-girl and also the evidence of the other witnesses particularly the witness in whose lodge the accused and victim-girl were stayed, clearly discloses that the accused and victim-girl had been to several places and when the victim-girl specifically says that she was not a consenting party, by the surrounding circumstances, the accused has to prove that she was a consenting party. As I have already said, it is not the case of the accused that he had sexual intercourse with the victim-girl with her consent, but it is the total denial of the prosecution case. Therefore, I am of the opinion that the prosecution by examining the victim-girl and other witnesses particularly the relatives of the victim-girl and the Doctor, has undoubtedly established that there was a sexual intercourse between the accused and victim-girl and the victim-girl has categorically stated that she was not a consenting party to the incident.

Though at the initial stages, the learned counsel for the accused contended that the prosecution has not brought-out the case beyond reasonable doubt, but, subsequently, he gave-up the arguments on merits of the case and only confined his arguments so far as sentence passed by the Trial Court is concerned. He submitted that the accused has already been in judicial custody for more than 8 years 7 months, therefore, he may be given set-off by considering the mitigating circumstances and the accused may be released.

Looking to the above said arguments of the learned counsel, I do not want to venture upon to discuss in detail the evidence of any other witnesses on the prosecution side. Therefore, the conviction recorded by the trial Court requires to be confirmed, in view of the above said submissions made by the learned counsel and the other materials available as narrated above. However, the Court has to see whether the sentence passed by the trial Court is proper and it requires to be reduced.

The learned counsel contended that the accused is not an anti-social element and he is a young person aged about 26 years and he has already undergone the sentence for a period of more than 8 years 7 months years. Therefore, the sentence for the remaining period of one and add year may be given a benefit of set-off to the accused.

Admittedly, from the evidence of the victim-girl as well as her parents, and brothers, it is seen that for many number of days the accused gained entry into the house of the complainant and he stayed there and performed some pooja in the house of the complainant and made them to believe that he is a special person having some extraneous power. The evidence of the victim girl also shows that the accused has asked the victim-girl whether she is ready to marry him. All these factors disclose that there was some affection developed between the victim-girl and the accused. But it is not sufficient to come to a definite conclusion that the victim-girl was a consenting party to the sexual act. Nevertheless, the affection between the parties can be taken as one of the mitigating circumstances in order to reduce the punishment. More over, the accused is aged 26 years and for his lapses of his virtue for three days, he has to pay penalty of eight years being in jail. Therefore, I am of the opinion that considering the surrounding circumstances, age of the accused and he being not an affluent person and he is a person eking livelihood by doing coolie, I am of the opinion that, to meet the ends of justice, the sentence already undergone by him has to be held as the sentence awarded. As could be seen from the records, the accused was arrested on 19.08.2006, since then, he has been in judicial custody. So, he has been in judicial custody for a period of eight years 7 months and 12 days. The minimum punishment prescribed under Section 376 of IPC is seven years, which may extend to life imprisonment or imprisonment for 10 years and he may also be liable to pay fine provided that the Court may for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment for a term less than seven years. But, as could be seen from the order of the learned Sessions Judge, he has not given any specific reasons as to why the accused has to be sentenced for more than the minimum punishment prescribed under law. If the evidence of the Doctor is taken into consideration, there was absolutely no external injuries found on the person of the victim-girl. Therefore, it cannot be inferred that there was any eminent danger of death so far as the victim-girl is concerned. Though there was rupture of hymen, it only indicates commission of sexual activity with the victim-girl. Section 366 of IPC also deals with kidnapping, abducting and enticing a girl or women to compel her for marriage. If the Court finds that the accused has committed such an offence, he shall be punished with imprisonment for a term which may extend to 10 years and also fine. Therefore, the minimum punishment which may be imposed by the trial Court to the accused is seven years. However, the accused has already undergone the sentence of 8 years 7 months and 12 days, which in my opinion, looking to the surrounding circumstances of the case and also the nature of punishment prescribed, can be treated as the sentence awarded against the accused.

In the facts and circumstances of this case, the judgment of conviction deserves to be confirmed and only the part of the sentence passed by the trial Court deserves to be modified.

In the result, I pass the following order:-

ORDER

The appeal is partly allowed. The judgment of conviction dated 27.06.2007 passed by the Fast Track Court-II, Raichur, in S.C. No. 153/2006, for the offences punishable under Sections 366 and 376 of IPC, is hereby confirmed. However, the sentence passed by the trial Court is modified holding that, the sentence of 8 years, 7 months, 12 days already undergone by the accused shall be treated as the sentence of imprisonment imposed by the Trial Court. As the trial Court has ordered the sentence to run concurrently, there is no need for the accused to pay fine amount, as he has already undergone the default sentence of two years, which merges with the imprisonment of 8 years 7 months and 12 days already undergone by him.

The office is directed to send an intimation to the concerned Jail Authorities to release the accused forthwith, if he is not required in any other case.