SHAKKU SHAH Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS judgment will also decide Criminal Appeal No. 425/91 (State of Madhya Pradesh v. Shukku Shah) and Criminal Appeal No. 795/90 (State of Madhya Pradesh v. Shukku Shah). Appellant Shukku Shah was prosecuted for an offence punishable under section 376 of the Indian Penal Code on the allegation that he had sexual intercourse with the prosecutrix Hassan Noor Bi, wife of Banne Khan, aged 30 years, against her consent, in the intervening night of 7/8th July, 1989. Sessions Judge, Sehore, by the impugned judgment dated 10.1.1990 passed in Sessions Trial No. 98/89, although acquitted the appellant from the charge of rape, but convicted him for an offence punishable under section 354 of the Indian Penal Code and sentenced him to undergo one year rigorous imprisonment. The present appeal has been preferred by the appellant challenging his impugned conviction and sentence. The State has also preferred a Criminal Appeal No. 425/91 against the acquittal of appellant under section 376 of the Indian Penal Code. The State has preferred another Criminal Appeal No. 795/90 for the enhancement of sentence of one year awarded to the appellant for an offence punishable under section 354 of the Indian Penal Code by the trial Court.

(2.) BRIEFLY stated the facts giving rise to this appeal are as under: There is one "Dargah" situated just by the side of Police Station, Jawar, District Sehore, and as such it is popularly known as "Thane Wali Dargah". Appellant has been a care -taker of the said "Dargah" since many years prior to the date of incident, i.e. intervening night of 7/8th July, 1989.

(3.) IN the following morning, prosecutrix (PW 3) went to the Police Station, Jawar, District Sehore, and lodged a report against the appellant. C.M. Dwivedi (PW 6), Station Officer of the said Police Station, registered a crime No. 146/89 for an offence punishable under section 376 of the Indian Penal Code and arrested the appellant on 8.7.1989 vide arrest memo, Ex. P -6, Dr. Gayatri Shrivastava (PW 1) examined the prosecutrix (PW 3) at 9.00 a.m. on 8.7.1989. In her report, Ex. P -1, she has stated that there was no sign of struggle nor she could give any definite opinion about the act of rape as she was habitual of sexual intercourse. Dr. Gayatri Shrivastava (PW 1), however, prepared a vaginal smear slide and a sealed packet of the Paijama of prosecutrix and handed over the same to Police Constable for their chemical examination. Appellant was also sent for medical examination to Dr. Pradeep Shrivastava (PW 2) who found the following injuries on his person in his medical report, Ex. P -2 :