STATE OF GUJARAT Vs. MOHAMMADFURKAN MOHAMMADSULEMAN

JUDGEMENT

(1.) BOTH the appeals arise out of the same judgment of the learned Sessions Judge, Kutch at Bhuj dated 28.06.2011 rendered in Sessions Case No.8 of 2010. Mohammadfurkan Mohammadsuleman ­ original accused was charged with the offences punishable under Section 376 of Indian Penal Code. By the impugned judgment he was convicted for the said offence and sentenced to R.I. of 7 years. Fine was also imposed. He has thereupon challenged his conviction and sentence by filing Criminal Appeal No.611 of 2012. The State seeking enhancement of the sentence has filed Criminal Appeal No.1220 of 2011. Both these appeals are consolidated, heard together and would be disposed of by this judgment.

(2.) BRIEFLY stated, the prosecution version was that the accused Mohammadfurkan Mohammadsuleman was residing at Mundra along with his wife Mehrunisha and stepdaughter (hereinafter referred to as 'the victim') aged about 15 years and his son. The accused used to frequently commit sexual intercourse on the victim. In the night of 2nd/3rd November, 2009 the accused had sexual intercourse with his minor stepdaughter, who was studying in 4th standard in a school at Mundra. In the morning, when the mother woke up the daughter for going to the school, the daughter started crying. After the accused left for work, the daughter confided into the mother about the incident of the night before and also told her that this has been going on since quite sometime. The mother thereupon approached the nearby police station and lodged FIR on 04.11.2009 (Exh.18).

(3.) THE first informant ­ Mehrunisha, P.W.1 was examined at Exh.17. She deposed that she resided with her husband, husband's son Mohammad Gulfam and her daughter S. at Mundra. The incident took place in the year 2009. At night she noticed that her husband was not sleeping next to her. He had gone inside the room where her daughter was sleeping. In the morning, when she woke up her daughter, she started crying and complained that the father had sex with her. She also found condoms from the bed of her daughter. The daughter also told her that previously whenever the father got a chance, he would have intercourse with her. She was crying. A few months before the incident also he had misbehaved with the daughter. A month before the incident also he had taken liberties with the daughter. She had seen such incident. When the daughter confided in her, she called up her husband at his office in Zindal Co. He therefore returned from the factory and pleaded his innocence. She went to the police station to lodge the FIR. She identified the condom covers which were found from the bed. She also identified the clothes and the Duppata of her daughter.