GEELANI SHAH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) On proof of charge of having committed the rape upon a minor child of 4/5 years of age, namely, Kulsuma, the trial court of Sessions Judge, Baramulla held the appellant guilty, convicted him under section 376, R.P.C. and sentenced him to undergo rigorous imprisonment for eight years besides, paying a fine of Rs. 5,000.00. It was further directed that in default of payment of fine, the appellant shall further undergo rigorous imprisonment for one year. It is submitted that the judgment of the trial court is contrary to facts and is in violation of law which is liable to be set- aside.

(2.) According to the prosecution Mst. Kulsuma, daughter of Muhammad Sultan Ahanger, aged about 4 or 5 years, along with Mst. Mariam, aged about 7 years, was collecting twigs at village Kaloosa on 30th of January, 1986. It is alleged that at about noon the appellant approached the aforesaid two children, offered to give fire-wood to Mst. Kulsuma and on that pretext he tookher to an orchard situated at a short distance leaving behind Mst. Mariam who waited for her. Mst. Kulsuma came back and rejoined Mst. Mariam after some time. She was weeping and bleeding from vagina. On enquiry, Mst. Kulsuma informed Mst. Mariam that the accused had done some thing to her and injured her. While Kulsuma was narrating the details of the occurrence, Mst. Mariam saw the appellant running away. These two girls narrated the incident to the parents of Mst. Kulsuma, namely, Mst. Khati and Mohd Sultan Ahanger. Mst. Kulsuma was bleeding from her vagina even at that time. She was taken to Doctor Niranjan Kour at the Sub-District Hospital, Bandipore. The Doctor found that the vagina of the victim had been tom and the tear was 1 x 1/2. She stitched the tom area of the vagina and advised the parents of the victim to report the matter to the Police, in consequence of which Mohammad Sultan lodged the written report E. X. P.W. 1/1 with Police Station at Bandipore on the same day at about 5.30 PM. The accused was arrested on 2/2/1987. His trouser was seized and sealed on 4/2/1986. The appellant was got medically examined on 5/2/1986 which revealed that he was capable of performing sexual act, but no stains either of blood or of semen could be detected on his genital organ for, he had taken a wash.

(3.) In order to prove the case, the prosecution examined nine witnesses, namely, P.W. Mohd Sultan Ahanger. Mst. Khati, Mst. Mariam, Ghulam Nabi Ahanger, Malia Khazir, Chowkidar; Dr. Niranjan Kour, Ghulam Mohd Reshi, Medical Officer; S. Moti Singh, Executive Magistrate, Rashid Ahmad, Investigating Officer and Mr. M. A. Qadiri, Scientific Assistant, Forensic Science Laboratory, Srinagar.