GH MOHD MIR Vs. STATE OF J&K

JUDGEMENT

(1.) APPELLANT , Ghulam Mohd. Mir, (hereinafter to be referred to as Accused) aged 70 years and a handicapped person being paralytic, as stated by learned senior counsel, Mr. S.A. Salaria, was charged under Section 376 read with Sections 511 and 342 RPC on the allegations that on 28 -05 -1998, he allegedly made an attempt to commit rape with the prosecutrix (name not being disclosed) in his room situated in city of Poonch. Vide impugned judgment of learned Sessions Judge, Poonch, dated 20 -02 -2004, he stands convicted for the said charges and has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/ - under Sections 376/511 RPC and in default of payment of fine to further undergo rigorous imprisonment for one year. Sentence imposed upon him for Section 342 RPC is rigorous imprisonment for one year and a fine of Rs.1,000/ -; in default thereof to undergo rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. The fine, on realization, is to be paid to the prosecutrix as compensation.

(2.) AGGRIEVED by the same, the accused has preferred the instant appeal, which is already admitted, and the substantive sentence of the accused is suspended during the pendency of the appeal.

(3.) THE case of the prosecution, in brief, is that, on 28 -05 -1998, the accused took the prosecutrix and also her husband to his room, from where he sent the husband of the prosecutrix to local bazaar to fetch milk and in his absence, he started pressing breasts of the prosecutrix. He even went to the extent of breaking open the string of her 'salwar and had given a bite on her cheek. It is then the case of the prosecution that the prosecutrix swallowed 'naswar, which she was having with her and as a result whereof, she started vomiting and closed her legs to save her honour. Further case of the prosecution is that the accused confined the prosecutrix wrongfully in his room for about half an hour till her husband came back and saved her from his clutches. Ultimately, on a written report of the prosecutrix, the police of Police Station, Poonch, swung into action on 01 -06 -1998 and got registered a case bearing FIR No.58/98 for the offences punishable under Sections 376/511, 354 and 342 RPC. During the investigation, a rough site plan of the place of occurrence was prepared, the prosecutrix was got medically examined by Dr. Sakhi Mohd on 01 -06 -1998 itself, and statements of the prosecution witnesses were recorded. After completion of the investigation, the challan was submitted against the accused in terms of Section 173 Cr. P.C. Consequently, he was charged for the offences punishable under Sections 376/511 and 342 RPC, for which he now stands convicted and sentenced.