LAWS(HPH)-2000-1-7

MAHBOOB ALI Vs. STATE OF HIMACHAL PRADESH

Decided On January 04, 2000
MAHBOOB ALI Appellant
V/S
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

(1.) These two appeals (Criminal Appeals Nos. 254 of 1991 and 36 of 1992) arise out of judgment dated 25-11-1991 passed by Additional Sessions Judge, Kullu, District Kullu whereby accused Mehbub Ali was convicted under Section 366, I.P.C. and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5000/-, and in default of payment of fine he was to further undergo simple imprisonment for a period of one year. Out of the fine, if recovered, an amount of Rs. 3000/- was to be paid to the prosecutrix (PW-9) without any prejudice to her claim for damages, if any. Mehbub Ali filed appeal (Criminal Appeal No. 254 of 1991) to challenge his conviction and sentence, whereas, State of Himachal Pradesh filed (Criminal Appeal No. 36 of 1992) to challenge his acquittal under Sections 376 and 363, I.P.C.

(2.) The prosecution story in brief is that the accused, who professes Islam and was doing the work of repairing Sofa Sets in the hotels, was the tenant in the building of the father of the prosecutrix, namely, Sada Ram (PW-8) at Manali in the year 1981. Sada Ram and his wife, both teachers, along with their three children, were also residing in the same building. The prosecutrix, the third child of Sada Ram, was studying in matric standard and used to learn Urdu from the accused. On 16-2-1990 at about 8.30 P.M. she was found missing from the house and when frantic search made by the entire family in the vicinity and in the houses of relatives and friends failed, Sada Ram lodged a missing report Ex. PJ in Police Station Manali. He also got published the photo of the prosecutrix in the Punjab Kesari daily issue for 19th March, 1990 Ex. PM and got her photo telecast in the Television but with no result.

(3.) On 23-9-1990 the prosecutrix accompanied by her father Sada Ram came to Police Station Manali with a child in her lap and gave statement on the basis of which FIR Ex. PQ was registered. According to her, two years back when she was student of 10th Class, she used to go to the room of the accused, who was their tenant, to learn Urdu. One day finding her alone in the room, he started molesting her, to which she resisted and told him that she was minor and he should not indulge in such activities. Thereafter, the accused started writing love letters in Urdu to her, which she used to tear off without reading. Later on he started visiting her sleeping room and at times used to sleep in her bed and one day finding her alone he forcibly committed rape on her and thereafter continued indulging in the illegal act many a time. She has further stated that13-14 months ago she had conceived from the accused and gave birth to a male child, who was then four months old. Her further statement was that when she was carrying pregnancy of six months, the accused told her that in case the members of her family came to know of it they would kill them, hence they should elope. Accordingly, as per the plan designed by the accused the prosecutrix met him at Kullu on 16-2-1990 and both of them went to Chandigarh, where she was put in rented house and the accused came back to Manali. Thereafter, the accused used to visit the prosecutrix casually and defray the expenses for her stay at Chandigarh. At last she delivered a male child when the accused was also present in the hospital. The prosecutrix has further stated that on 22-9-1990 when she was going back on the pillion of scooter of Asha Thakur (PW-6) after getting her child vaccinated, her cousin Vinod Kumar (PW-7), who was studying at Chandigarh, came across them on a bicycle and stopped them after recognising the prosecutrix. Thereafter he arranged for taxi and brought the prosecutrix to Manali. The prosecutrix further stated that she was kept illegally by the accused at Chandigarh by giving threats to her life and also that the accused had intentions to remove her to Bombay, for which he had already purchased the railway tickets.