Mohd Harun Rashid @ Bholu Vs State of Chhattisgarh

1 This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 13.08.2018, passed by Incharge Additional Sessions Judge (FTC), Raigarh (CG) in Sessions Trial No.

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214/2011, by which, the appellant herein has been convicted and sentenced in the following manner:

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Conviction	Sentence
u/s 363 of IPC	R.I. for 7 years with fine of Rs.2,000, in default of payment of fine, 2 months additional R.I.
u/s 323 of IPC	R.I. for 1year
u/s 376 of IPC	Life imprisonment and fine of
	Rs.2,000, in default of payment of
	fine, 2 months additional R.I.

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2 The case of prosecution, in short, is that on 17.11.2010 at about 4 p.m., the appellant herein is alleged to have abducted the minor victim (PW-6) aged about 4 years from the lawful guardianship of her grand-mother Firtin Bai (PW1) and committed sexual intercourse with her, thereby committed the aforesaid offence. Upon report being lodged by Firtin Bai (PW-1)-the grand-mother of the victim, FIR was registered vide Ex.P-5. The victim was subjected to medical examination by Dr. Sushma Ekka (PW-13) vide Ex.P-6, in which, she found bleeding from the private part of the victim. There were several contusions and abrasions on her body. There was tear involving the posterior part of the hymen with irregular margins. Vagina rectum posterior part of hymen tear was present which was 2 x 4 cm deep and was bleeding from it which the doctor repaired through surgery. Two slides were prepared from the vaginal swabs which were sent to FSL for chemical examination along with other seized articles. As per the FSL report, stains of semen and human sperm has been found on Article D i.e. the skirt of the victim. After completion of investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately

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committed to the Court of Sessions for hearing and disposal in accordance with law.

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3 During the course of trial, in order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 22 documents in support of its case. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has examined 1 witness and exhibited 2 documents.

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4 Learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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5 Mr. Ratnesh Agrawal, learned counsel for the appellant, would submit that the prosecution has not able to bring home the offence beyond reasonable doubt, therefore, the appeal deserves to be dismissed. Alternatively, he submits that the incident is of 17.11.2010 and amendment to section 376 of IPC came into force w.e.f. 03.02.2013. At that time, the minimum punishment for offence under Section 376 (2) (f) of IPC was 10 years as the victim was a minor of about 4 years, therefore, the sentence of life imprisonment imposed by the trial Court is not proper and the appellant is liable to be sentenced to rigorous imprisonment for 10 years.

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6 Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt. He submits that the statement of victim is supported by the medical report as well as the FSL report and considering the manner in which the offence has been committed with a four year old girl, the sentence of life imprisonment imposed by the trial Court is justified and does not require any interference. He further submits that the appellant had absconded during trial and also from the jail, therefore, the trial Court has rightly convicted and sentenced the appellant for the aforesaid offence. As such, the appeal deserves to be dismissed.

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7 We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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8 Firtin Bai (PW-1) - the grand-mother of the victim has stated that on the date of offence, the victim was playing along with her friends Gopita, Sangita and Ruchi. When the victim did not return home for a long time, she enquired about the victim from her friends, then Gopita told her that the appellant had taken the victim towards the boundary of Bhatia (place of occurrence). When she went to the place of occurrence, she found the victim moaning near the bushes. Her undergarments were lying nearby and a lot of blood had come out from her private part. Though Gopita (PW-2) has not supported the case of prosecution but Laxmi Prasad Yadav (PW-4) & Dashrath Prasad (PW-5) have stated before the Court that on the date of offence, they had seen the appellant going out of the boundary of Bhatia through a small path. When they along with Siva Bashod (PW-9)

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rushed to catch the accused, he fled towards Siddhi Vinayak Colony and soon thereafter the victim was recovered from the place of occurrence. Siva Bashod (PW-9) has also stated that when he along with PW-4 & PW-5 rushed to catch the appellant, he fled from the scene. The victim (PW-6) has clearly stated that it is the appellant who on the date of offence, while she was playing with her friends, lured her by saying that your father is giving mixture and biscuits and took her inside the boundary of Bhatia, removed her clothes and committed sexual intercourse with her, after which she fell unconscious. From her cross-examination nothing has been extracted to hold that she was not subjected to sexual intercourse. The victim was immediately examined by Dr. Sushma Ekka (PW-13) and her MLC report is Ex.P-6, in which, she found 8 external injuries on her body and bleeding from her private part. There was tear present, 3^rd degree perinial tear in rectum & vaginal tear involving the post part of the hymen with irregular margins. Vagina rectum posterior part of hymen tear was 2 x 4 cm deep and was bleeding from it which the doctor repaired through surgery. The doctor has opined that the victim was subjected to sexual intercourse and the injuries sustained by her were of serious nature which were within 24 hours. From her cross-examination, nothing has been extracted in favour of the defence. As per the FSL report, stains of semen and human sperm has been found on Article-D i.e. Skirt of the victim and blood was found on Articles – C, D, E, G & H i.e. slide, skirt and kurta of the victim, full pant of the appellant and Bees respectively. Taking into consideration the statements of the victim (PW-6), her grand-mother Firtin Bai (PW-1), Laxmi Prasad Yadav (PW-4), Dashrath Bashod (PW-5), Shiva

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Bashod (PW-9) and also considering the statement of Dr. Sushma Ekka (PW-13) and her MLC report (Ex.P-6) and the FSL report, we are of the considered opinion that the trial Court has rightly convicted the appellant for offence under Sections 363, 323 & 376 of IPC and we do not find any infirmity in the conviction recorded by the trial Court which is based on evidence available on record. Accordingly, we hereby affirm the conviction of the appellant under Sections 363, 323 & 376 of IPC.

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9 As regards sentence, the incident took place on 17.11.2010 and amendment to Section 376 of IPC came into force w.e.f. 03.02.2013. At that time, the minimum punishment for offence under Section 376 (2) (f) of IPC was 10 years. However, considering the manner in which the appellant committed the heinous offence by kidnapping a minor girl of 4 years and also the fact that he absconded during the course of trial and even from the jail, which has been recorded vide order sheet dated 05.08.2024, we do not deem it appropriate to sentence the appellant to undergo RI for 10 years instead of life imprisonment as prayed for by the counsel for appellant. Hence, the sentence imposed by the trial Court vide impugned judgment is upheld.

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10 Thus, the appeal being devoid of merit deserves to be and is accordingly dismissed .

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Mohd Harun Rashid @ Bholu v. State of Chhattisgarh

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Mohd Harun Rashid @ Bholu v. State of Chhattisgarh

Case brief

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