SHAIKH GAFOOR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant Shaikh Gafoor, aged 19 years, resident of Hoshangabad, has been convitced by the Additional Sessions Judge, Hosh-angabad, of two offences (1) under Section 366 and (2) under Section 376 of the Indian Penal Code and has been sentenced to five years' rigorous imprisonment on each count. The two sentences have been ordered to run concurrently.

(2.) THE offence under Section 366 has been tried by the Jury and the learned Judge agreed with the verdict of the Jury that the appellant is guilty for having abducted smt. Narbadibai (P. W. 1) on 8-8-1957 at Hoshangabad to force or seduce her to illicit intercourse. The prosecution story is that the appellant and Ramkisan (P. W. 3) husband of Smt. Narbadibai (P. W. 1) were neighbours in Bala-ganj ward of hoshangabad town. There were intimate relations between the two families. The appellant was a friend of Puran, younger brother of Ramkisan (P. W. 3), and, therefore, Smt. Narbadibai treated him as her brother-in-law and used to call him 'dewar'. There was no purdah observed and the appellant used to come to the family house of Ramkisan. Ramkisan was married in early childhood and was living with his father and brothers. It transpires that Puran, the younger brother of Ramkisan, did not pull on well either with Ramkisau or with Smt. Narbadibai. He was quarrelsome and hot-tempered. He had turned both of them out of the house. Ramkisan was a conductor in a private Bus Service. On 8-8-1957 he had gone on duty, out of hoshangabad to Khandwa. On that day, Puran abused Smt. Narbadibai, cast aspersions on her character and turned her out. She had a child, aged 11 or 12 months, whom she took with her and left the house. She straightway went to the Police Station where she made a report (Ex. P-5), at about 4-30 p. m. regarding the circumstances in which she left the house and stated in this report that she was going to her sister, Rampyari, who resides in the madarwada ward of the town. Now, this report is important, and I snail deal with it later. It may be mentioned here that in this report she had also stated that her husband was not treating her well. That was the day of Tajiya celebrations in the town. Instead of going to her sister, she, however, went to Rudni and her story is that she was kidnapped or abducted by the appellant Shaikh Gafoor along with one Ismail who has not been prosecuted in this case. Both, according to her story, threatened her at Budni and committed rape on her. Then they took her to Bhelsa and, thereafter, from Bhelsa she was brought to burhanpur where she was kept in a house and both of them again committed rape on her. Ismail, it appears, left soon after, and, she remained, according to her statement, in a house which belonged to one Ramdayal (P. W. 6) and which was taken on rent by the appellant for her. Her story, then, is that every day the appellant committed rape on her.

(3.) THE appellant denied these allegations and pleaded not guilty. His defence is that he did not abduct Smt. Narbadibai, but that three days befort the Tajiya celebrations he was already in Burhanpur and that it was only by chance that he met Smt. Narbadibai who wanted some shelter and a house for her and so he got it arranged through Ramdayal (P W. 6 ). Thereafter, the appellant says, he informed his father Gulab to inform Ramkisan and others of the whereabouts of smt. Narbadibai. Then, the party with Ramkisan came and took her away on 19th or 20th August 1957. Now, it is important here to note that though a report had been made at hoshangabad Police Station about her missing and though the party had come on 18th and left on 19th August 1957, no report was made in Burhanpur where, it is alleged, she was rescued from the clutches of the appellant. It would thus be seen that Smt. Narbadibai left Hoshangabad on 8-8-1957 in the evening and, according to the prosecution, left Budhni on 9-8-1957 in the evening reaching Bhelsa late in the night and left Bhelsa on 10-8-1957, at about 9 or 10 a. m. and reached Burhanpur on the same date in the afternoon or in the evening. On 11-8-1957 a house was taken on rent for her and till 18-8-1957 she remained in that house till the party came from Hoshangabad and rescued her. It is admitted by the prosecution that the party stayed at Burhanpur on 18th and 19th August 19571 and came back to Hoshangabad on the evening of 20th August 1957, It is significant that no report was made in Burhanpur either on 18th or on 19th August 1957 and even after reaching Hoshangabad in the evening of 20-81957 no report was lodged there. A report (Ex. P-1) was lodged at Hoshangabad police Station in the evening on 21-8-1957, at about 7-30 p. m.