This appeal under section 410, Cr. P. C. Directed against the. Judgment dated 23-2-1980 of the learned 3rd Additional Sessions Judge, Hryderabad, whereby he convicted the appellant under section 366, P. P. C. And ;sentenced him to suffer simple imprisonment for 10 years and also to pay a fine of Rs. 500 or in default of payment of fine to undergo further simple imprison--ment for two months. He was also convicted under section 376, P. P. C. And sentenced to S. 1. For 10 years and to pay a fine of Rs. 500 or in default to undergo further simple imprisonment for two months, he was v0so convicted under section 344, P. P. C. And sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs. 100 or in default of payment of fine to undergo further simple imprisonment for one month. The sentences are ordered to run concurrently.
2. The brief facts of the prosecution case are that one Fakir Muhammad son of Jan Muhammad, Rajput by caste, resident of Pinjrapur, Hyderabad, lodged his F.
1. R. On 3-9-1972 at 12-15 hours for the occurrence which took place on 13-8-1972 and it reads as under :- "I reside at Tank No. 2 Pinjrapur along with my family members. I have got five (5) issues. My two (2) daughters are married who reside in their own houses. My wife, son Abdul Ghani aged 11 years, daughters Najma aged about 7 years and Salma aged about 14 years are residing with me in the house. I have a own gram-shop near the house. On 13-8-1972, 1 was in the house. At about 1930 hours. I along with other family members went to sleep on the roof of the house while my daughter Salma was below. After a short while I called my daughter Salma but received no response. I went down and found my daughter was missing. I enquired from Yousif maternal uncle of girl and Hanif my son-in-law and other neighbours. I also enquired from the other houses of neighbourers but there was no trace of the girl. I suspected Munir and Hussain Tellies as they used to visit my gram- shop and also they used to make rounds of my house. I along with Yousif and Hanif searched for my daughter Salma. Now I have come to know that Munir and Hussain Tellies had enticed away my daughter Salma and had concealed her at some other place. I have further come to know that she is confined in Mobeen's house. FlowI have come to know that Munir, Mubeen and othershad enticed away my daughter Salma aged about 14 years. I lodge complaint, justice be done."
3. Mehar Khan Awan, A. S. I. Of Police Station Phulleli of Hyderabad, recorded the F.
1. R. Exh.
9. He went to the scene of offence and inspected it in presence of mashirs Abdul Hakim and Taj Muhammad and prepared such Mashirnama Exh.
15. The scene of offence was situated in the house of the complainant who produced his daughter Mst. Salma before him on 29-11-1972. He recorded her statement and got her medically examined on 30-11-1972 through the Woman Medical Officer who issued the certificate Exh.
6. He then got her 164, Cr. P. C. Statement recorded before the Resident Magistrate, Tando Bago on 8-12-1972. Mst. Salma showed the house to the Police where she was confined in Karachi. It belonged to one Mst. Zaitoon of Liaquatabad, Karachi.
It was taken by the appellant on rent. He prepared such Mashirnama Exh. 23 in presence of mashirs Khursheed and Mirza Mazharbeg. He then examined Mst. Zaitoon and Mst. Salina. Muneeruddin (accused) appeared before him on 29-1-1974 at police station, being on bail granted by the Court of Session and S. H. O. Muhammad Ali challaned the accused on 18-2-1974. He also produced the report of the Chemical Analyser Exh. 24.
4. The prosecution case is based on the evidence of the complainant Fakir Muhammad P. W. 2, Mst.
Salma prosecutrix P. W. 3, corroborative witnesses Yousuf P. W. 4, Muhammad Hanif P. W. 6, Khursheed Alam P. W. 8, Dr. Mrs. Qamar Naqvi P. W. 1 and the evidence of Mehar Khan Awan,
1. O.
5. The accused, however, denied the allegations and has further stated that P. W. Fakir Muhammad was on inimical terms with him on account of a dispute over a Vending stall who has falsely implicated him to take his vengeance and the other P. Ws. Were relatives and friends of Fakir Muhammad. He has examined Mst. Zaitoon in his defence as D. W. 1.
6. The medical evidence shows that Mst. Salma was aged between 16 and 17 years. There was no marks of any injury either on her body or on her external genitals and her hymen was not intact. In the opinion of the Medical Officer P. W. 1, who was examined at the trial Mst. Salma was used to sexual intercourse. The M. O. Has produced the medical certificate Exh. 6 and X-Ray plate Exh. 7.
7. The point for determination is, if Mst. Salma was abducted by the accused so as to compel her, for illicit intercourse and also if the accused wrongfully confined her and committed rape on him ?
8. At the trial, the prosecution examined Fakir Muhammad complainant who stated same facts as given by him in the F. I. R. Mst. Salma prosecutrix P. W. 3 who has stated that it was at 7-00 p.m. On the day of incident when she was taking water from water-tap and her parents were sleeping on the roof of her house, the accused Muneeruddin came there and asked her to accompany him to auntee's house. He took her in a rickshaw which. Was parked in the street and on the way he threatened her and showed a knife to her. She raised cries but he threatened her. He then took her to Karachi in a bus and kept her in a house for three months where he used to cohabit with her. She got a chance and came to Hyderabad by a bus and narrated the story to her parents. Yousuf P. W.
4 who is maternal uncle of the prosecutrix and Muhammad Hanif P. W. 6 who is son-in-law of the complainant have not supported the prosecution case and have on the contrary stated that the complainant informed them on the next day of the incident that Mst. Salma had gone away.
Khursheod Alarri P. W. 8, has stated that one Kaloo had gone to him to have house on rent and he got him one in which Kaloo, the accused Muneer and Mst. Salma prosecutrix resided for 2/3 months at Karachi, Mst. Salma used to go to their house. The accused Muneer and Mst. Salma went together when they left the house whereas Kaloo went later on.
11. Mr. A. Q. Halepota, the learned counsel for the appellant has contended that there is delay of about 21 days in lodging the F. I. R. For which no plausible explanation has been given by the prosecution. If Mst. Salma had been taken away against her will, there was no reason to have delayed the F. I. R. Mst. Salma being 16/17 years of age would not have been taken to Karachi in a bus without her consent and there was no convincing evidence on record to show that force was used in taking her to Karachi. Moreover she could have very easily complained and tried to come to her parents' house in case she was not a willing party to live in Karachi as she used to visit the house of others. The medical evidence showed that she was used to sexual intercourse and there was no marks of violence on any part of her body which led to only conclusion that no force was used even in case of sexual intercourse with her. The report of the chemical analyser is also in negative. There is only an uncorroborated word of the prosecutrix on the point of kidnapping, rape as well as wrongful confinement. It would be, therefore, unsafe to rely on her evidence without corroboration particularly when P. Ws. Yousuf and Muhammad Hanif who are closely related to the complainant have not supported her even on the point of kidnapping. P. Ws. Yousuf as well as Muhammad Hanif were informed by the complainant on the next day of the incident that Mst.
Salma had gone away. The prosecution has failed to connect the appellant with the offence who is entitled to acquittal under the circumstances of the case. He relies upon (i) PLD 1967 SC 326 and
(ii) 1976 P Cr. L J 364.
12. Mr. Habibur Rashid, the learned counsel appearing for the State does not support the conviction and sentences awarded to the appellant in view of insufficient evidence against him. He is of the view that the prosecution has failed to connect the appellant with the offence.
13. I have considered the contentions of the learned counsel for the appellant as well as State. I have also carefully read the evidence on record and have gone through the citations referred to above by the learned counsel for the appellant. The complainant has not been supported on the point of kidnapping even by his two close relatives, i.e. Yousuf P. W. 4 and Muhammad Hanif P. W. 6.
There is also no plausible explanation for lodging the F. I. R. After a delay of about 21 days which demolishes the prosecution case and leads to conclusion that Mst. Salma had left the house on he own accord and without any use of force against her. As far as rape and wrongful confinement are concerned, the prosecution has placed only evidence of Mst. Salma on record which has not been corroborated in any-- manner. She, being 16/17 years of age, cannot be considered below the age of consent and therefore, the principles governing the question of corroboration will be very much attracted in this case. It is a settled position that corroboration must come from independent sources apart from testimony of the prosecutrix herself -which is not available in this case I. The medical evidence as well as the report of the chemical analyser do not support the prosecution case for rape. It is, therefore, very difficult to maintain convictions and sentences awarded to the appellant on such evidence. There C fore, taking into consideration all the facts and circumstances of the case am of the view that the prosecution has failed to connect the appellant with) the offence and I accordingly acquit him.
14. In the result I allow this appeal, set aside the convictions and sentences awarded to the appellant. The judgment, acquitting the appellant was announced earlier by way of a short order by me and these are the reasons for it.