GULAMMOHAMED MOHAMED YUSUF SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Criminal Appeal No. 214 of 1991 is preferred by the original accused- Gulammohmed Mohmed Yusuf Saiyed under Section 374(2) of the Code of Criminal Procedure against the judgment and order of his conviction under Sections 363, 366 and 376 I. P. C. by the learned Additional Sessions Judge, Baroda, in Sessions Case No. 126/90. The appellant-accused was convicted for committing an offence punishable under Section 376 IPC and sentenced to suffer R.I for 5 years and to pay a fine of Rs. 1,000.00 in default to suffer R.I. for three months. He was also sentenced to suffer R.I. for three years and to pay a fine of Rs.1,000.00, in default, to suffer imprisonment for one month for committing an offence under Section 366 I.P.C. No separate sentence was imposed for committing the offence under Section 363 I.P.C. Substantive sentences were orderd to run concurrently.

(2.) It was the prosecution case that the accused who was running a Madresa for teaching Urdu and Arabic languages relating to the tenets of Islamic religion between 7.00 a.m. and 10.00 a.m. requested his student Shahjabanu at about 11-30 a.m. to bring Nasimakhatun aged 12 years who also used to attend the Madresa, and committed rape on Nasimakhatun in the kitchen portion of his room after she came there at about 12 noon. The father of the victim Ishrafil Salimbhai Ansari lodged his complaint on the same day, i.e. on 20-5-90 with Sayajiganj police station at 18-15 hrs. It also appears that the accused was found to be seriously injured and was admitted to the hospital. After registering the complaint and after recording the statements of certain witnesses as per the say of the complainant and his wife, the police submitted the charge-sheet. Therefter on 17-8-90 the case was committed to the Court of Sessions which framed the charge as under:

(3.) The accused pleaded not guilty. The learned Addl. Sessions Judge recorded the evidence of prosecution witness No. 1-Pankaj Haridas Barai, Professor in Medicinal Science at Exh. 14, the prosecution witness No. 2 - Jshrafil Salimbhai Ansari, father of the minor Nashimakhatun, Exb. 18. The prosecution witness No. 3-Jamilakhatun Ishrafil, mother of the minor Nashimakhatun, Exh. 23, prosecution witness No. 4-Rukshana Moyuddin, aged 9 years at Exh. 24, prosecution witness No. 5-Shahjabanu Mohmedyasin aged 11, at Exh. 25 and the prosecutrix herself P.W. 6- Nashima Ishrafil Ansari at Exh. 26. The Investigating Officer Kiritikumar Mulshanker Joshi was prosecution witness No. 8 whose evidence was recorded at Exh. 30. Panch witness Salimbhai Sheikh whose evidence was recorded at Exh. 28 turned hostile and so the Panchnama regarding the scene of offence was not proved.