STATE Vs. MOHD. ASHRAF

JUDGEMENT

(1.) By virtue of this petition, the State seeks leave to appeal against the judgment dated 17th August, 2007 of learned Additional Sessions Judge by which respondent Mohd. Ashraf was acquitted of the charge of having committed an offence punishable under Sec. 376/506 IPC. The facts of the case are that on 26th March, 2005 at about 9.28 p.m. vide DD No. 49 -B, P.S. Samai Pur, Badli was informed about the complaint being received from Shabnam that her husband was doing "galat kaam" with her daughter. The DD was marked to ASI Prem Singh for necessary action. The intimation of the rape being committed was also given to WSI Parvati of P.S. Samai Pur, Badli who also reached the spot and found ASI Prem Singh along with his staff present there. The complainant Shabnam Begum along with her daughter, the child victim "R" (the name of CRL. LP No. 9/2008 Page 1 of 6 [PR1] the child victim withheld) and her husband were found present. As per the complaint Ex. PW -2/A, Mohd. Ashraf was the second husband of the complainant and she had two children from her first husband Mohd. Ismail, after whose death, she married the respondent Mohd. Ashraf. The complaint also said that on 24March, 2005, she was away on work and when she returned home in the evening, her neighbour Salma informed her that, at about 5 PM, (when she visited the complainant"s house to take the cooker), she saw the respondent doing "galat kaam" with her daughter. She questioned the child victim who confirmed the same and further informed her that earlier too he had done such said "galat kaam". When she asked the respondent why he had done so, he threatened her. Again on 26March, 2005, in her presence, the respondent tried to do "galat kaam" with the child victim under the influence of liquor and she informed the PCR about the incident as well as the earlier incident of rape having been committed upon her daughter three days back. After registration of FIR No. 231/05 at P.S. Samai Pur, Badli in respect of the incident, the child victim "R" as well as the respondent were sent for medical examination. Statements of the witnesses were recorded.

(2.) After completion of investigation, the charges of having committed the offences punishable under Sec. 376/506 IPC were framed against the respondent to which he pleaded not guilty. In order to bring home his guilt, the prosecution examined 10 witnesses. Out of these witnesses, the statements of PW -1 the child victim "R"; PW -2 her mother and complainant Shabnam Begum; and PW -3 Salma her neighbour are very crucial to decide the present petition; their testimonies are to be considered in the light of findings given by PW -4 Dr. Shakuntala on the MLC Ex. PW -4/A of the child victim.

(3.) After considering material discrepancies and improbabilities regarding the occurrence and whether the "galat kaam" or rape was committed by the respondent, once or more than once, whether there was a fatal delay in reporting the matter to the police and whether the conduct of the eye witness PW -3 Salma in the facts and circumstances was normal and probable, the Trial court arrived at the following conclusion: