GHULAM KADIR Versus STATE

Appellant above-named, being aggrieved by judgment dated 9th September, 1980, of the learned I1Ird Additional Sessions Judge, Hyder abad, by which he has been convicted under section 376, P. P. C. and sentenced to life imprisonment, has preferred the above appeal on the following facts and grounds

2. The prosecution story is that complainant Muhammad Hussain has a daughter, aged about 8 years, namely Baby Rubina, who goes to school in the evening shift. About 8 months ago, the complainant came to his house, after closing his shop, when his daughter Rubina told him, that she would not go to school, whereon he enquired from her as to why she would not go. Thereon she complained, that the peon of the school raped upon her. She informed her father, that the peon takes her to the room, puts off her trousers and then commits rape upon her. She further complained, that the peon was also seducing her. Then the complainant went and informed Abdul Waheed Qureshi, the Municipal Councillor of the said area. Thereafter the complainant went and lodged the F. I. R. Then the girl was referred to Doctor for medical opinion. The Police in vestigated the matter and then challaned the appellant.

3. The prosecution has led the evidence of Dr. Suraya Siddiqi (Exh. 5), Muhammad Hussain (Exh. 7) the complainant, victim girl Rubina (Exh. 6), Mashir Ashiq Hussain (Exh. 10), Lady Inspectress of Police Azara Muneer (Exh. 14) and Municipal Councillor Abdul Waheed Qureshi (Exh. 15).

4. Exh. 18 is the statement of the appellant under section 342, Cr. P.C. wherein the appellant has denied the allegations and has stated, that he has enmity with the Municipal Councillor Abdul Waheed Qureshi, who wanted to get rid of him from the school so as to get employment to his own man and, therefore, at the instance of that Municipal Councillor, the case has been foisted on him. He further said that he had nothing to do with Primary School, as he was peon in the morning shift and the girls of the school are like his daughters and he is innocent. Exh. 19 is the statement of the defence counsel, wherein he has stated that he did not intend to lead any defence.

5. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellant above-named as hereinabove mentioned vide its judgment dated 9th September, 1980.

6. The appellant above-named being aggrieved by impugned judgment dated 9th September, 1980, of the learned IIIrd Additional Sessions Judge, Hyderabad, has preferred the above appeal, on the grounds mentioned in the memo. of appeal.

7. The learned Advocate for the appellant in support of the above appeal, submitted as under :-

(a) That there was delay in lodging of F. I. R. of nearly 3 days, for which no plausible explanation has been given by the complainant--

(b) That there are no eye-Witnesses of the incident, except P. W. 3 Rubina the alleged victim. In view of this the learned Advocate for the appellant submitted, that in the absence of any independent corroboration, the conviction of the appellant was not at all justified and in support of this contention the learned Advocate for the appellant relied upon cases reported in 8 1 C 259, A I R 1944 Nag. 245, A I R 1942 Bom. 121, A I R 1946 All. 191, P L D 1980 Pesh. 139, 1976 P Cr. L J 364, P L D 1980 S C 325 and A I R 1942 Mad. 285.

(c) That victim P. W. 3 Rubina even after lodging of F. I. R. was not immediately examined and as such no reliance can be placed on evidence of P. W. 1 Dr. Surya Siddiqi. Even otherwise the evidence of P. W. 1 clearly shows, that there were no marks of injuries on the private parts of P. W. 3 Rubina and her statement in Court also shows no rape wag-committed on her, as she has categorically stated, that she did not get any pain in the act in question, although she is stated to be 8 years old. In support of this con tention the learned Advocate for the appellant relied upon case reported in 1980 A C 223.

(d) That the appellant according to his statement under section 342, Cr. P. C. has stated, that he has been involved on account of P. W. 5 Abdul Waheed and in view of the fact that there was delay in lodging of F. I. R. and since there are contradictions in the evidence of P. W. 5 Abdul Waheed and I. O. the contention of the appellant in respect of alleged enmity cannot be over looked.

8. The learned Advocate in view of the above submissions made by him stated, that prosecution has failed to establish its case against the present appellant, beyond reasonable doubt and as such the conviction and sen tence awarded to the appellant are liable to be set aside by this Court.

9. The learned Advocate appearing for the State on the other hand submitted, that the statement of P. W. 3 Rubina the victim, has been fully corroborated by P. W. 1 Dr. Suraya Siddiqi and since the statement of these two witnesses have not been successfully challenged in their cross-examina tion, the judgment of the learned trial Court cannot be set aside, as it is based on cogent reasons. The learned Advocate for the State further submitted, that the delay in lodging of F. I. R. has been fully explained by the complainant in F. I. R. as well as in his statement and the contention of the appellant regarding alleged cause of his false involvement by P. W. 5 Abdul Waheed is unbelievable and as such should not be taken into consideration.

10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F. I. R. and the statements of P. W. 1 Dr. Suraya Siddiqi and P. W. 3 Rubina as well as P. W. 7 Muhammad Hussain, father of the victim P. W. Rubina. I have gone through the authorities cited by the learned Advocate for the appellant.

11. It is an admitted position, that the alleged offences is dated 30 th January, 1980 where as F. I. R. has been lodged on 2nd February, 1980, in the afternoon and the explanation for delay given in the F.I.R. By P.W.7 Muhammad Hussain is not at all convincing. It maybe noted that PW5 Abdul Waheed in his statement stated that they were advised by Police to wait till the opening day of the school, has been contradicted by P. W. 14 Azra Munir, I.O. of the case.

12. The version of the incident given in the F. I. R. Exh. 8 by the father of P. W. 3 Rubina, which is based on the information received by him from P. W. 3 Rubina, is contrary to the statement of P. W. 3 Rubina before the learned trial Court. P. W. 3 Rubina in her statement before the learned trial Court speaks of penetration, whereas in F. I. R. Exh. 8 nothing is mentioned about such fact. It may further be noted, that incident of 30th January was not the first incident according to P. W. 3 Rubina, but in spite of this it is clear from her evidence, that she continued to go with the appellant, even after her alleged first bitter experience.

13. Further I find from the statement of P. W. 3 Rubina, that even on the first time, when she was allegedly subjected to rape by the appellant, she did not experience any pain. Keeping in view this fact, and the state ment of P. W. 1 Dr. Suraya Siddiqi, according to whom there were no marks of violence on the private parts of P. W. 3 Rubina, the question of actual rape having been committed by the appellant is not free from doubt. It may further be noted, that P. W. 3 Rubina in her statement before the learned trial Court has admitted in her cross-examination, that she did not on any occasion bleed from her vagina nor she complained to any teacher. She further also admitted, that teachers leave the school usually after the departure of all the girls and as such it is surprising that no member of the school staff noticed appellant taking P. W. 3 Rubina to a room, for the alleged offence.

14. Therefore, in view of my above observations the contentions raised by the learned Advocate for the appellant have great force, that P. W. 3 Rubina was not victim and actually raped and that prosecution has failed to prove its case against the present appellant beyond reason able doubt. Cases cited by the learned Advocate for the appellants are applicable to the facts of the present case.

15. Keeping in view the facts in delay of lodging of F. I. R. and statement of P. W. 14 Azra Munir (I.O.) that she did not advise P. W. 5 Abdul Wahid and/or complainant not to lodge report till opening day of school, the explanation for delay in lodging of F. I. R. besides being un convincing has not been proved. Further contradictions in the version as given in F. I. R. and in the statement of P. W. 3 Rubina in trial Court and under section 161, Cr. P. C. and keeping in view the statement of P. W. 1 Dr. Suraya Siddiqi, fact whether P. W. 3 Rubina was really victim of rape as alleged by prosecution, becomes doubtful. Therefore, the appellant is entitled to benefit of all these doubts. Case reported in P L D 1960 S C 325 fully supports my conclusions.

16. Consequently, I would allow the above appeal and set aside the conviction and sentence awarded to the appellant and acquit him, by giving him benefit of doubt. I direct that the appellant be released forth with, if he is not required in any other case.

Appeal allowed