This appeal through jail has been preferred by the appellant against the judgment dated 12-2-1980 of the learned III Additional Sessions Judge, Hyderabad, whereby he convicted the appellant under section 364-A, P. P. C., and sentenced him to suffer imprisonment for life. He was also found guilty of offence under section 342. P. P. C. And convicted as such to suffer imprisonment for one year and also to pay a fine of Rs. 1,000 or in default of payment of fine to undergo simple imprisonment for three months more.
2. The facts of the prosecution case are that one Abdul Hafeez son of Abdul Rasheed Ansari resident of Katcha House behind Noor Mahal Cinema, Reshi Ghat, Hyderabad, lodged his F. F. R. On 30-9-1978 at Police Station, Market, which reads as under: - ---That, I am operator of cloth machine in cloth Factory of Sajid near Phuleli Police Station. Daily I go to work at 7 O' Clock and come at 3 (Paper torn) p. m. To my house after completing my work. I am residing in my house with my family. My brothers and mother are also residing with me. Today i.e. 30-9-1978 at 12.15 hours my younger brother Khurshid aged 20 years came to me at the Factory.
He came and said, "Fazaldin Pathan who is residing in the house of Hafiz Khuda Bux in Gaoshala at a distance of about one furlong from our house had taken away your younger daughter Salma aged about 6 years from the street, while she was playing, for committing illicit act upon her to his house. People of the Mohallah have caught him and have taken him to the police station with the girl. "On having this news, I reached them and found that Hussainuddin, Abdul Rasheed and Muhammad Suleman Shaikh Ansari resident of Gaoshala were taking Fazaldin to the police station with the girl. Abdul Rasheed told me." Today, I was in my house at about 12.00 noon, when there was sound of weeping of a child from the house of neighbourer Fazaldin. Upon this, I got suspicious, as he was residing alone. I came out. Muhammad Suleman and Hussainuddin also came out. There-- after we went near the house of Fazaldin and saw from the seams of the door that he had made this present girl Salma daughter of Hafeez Ansari sit on his naked thighs and was trying to commit rape forcibly upon her, and the girl was weeping. We forcibly opened the door and went inside. We found that underwear of girl 'Salmi' was removed and 'Pajama' of Fazaldin was also removed.
Fazaldin was sitting on a cot and he had made to sit girl 'Salmi' on his naked thighs and was trying to commit rape on her forcibly. On our going inside, he tried to get up, but we captured him. Upon this he started begging pardon and making entreaties. We are taking him alongwith girl 'Salmi' to the police station". Thereafter I have also accompanied them to the police station. I produce Fazaluddin and girl Salma that accused Fazaluddin has confined my minor daughter Salma into his house and was trying to commit rape on her forcibly. Investigation be made.---
3. Riasat Ali A. S. I. P., recorded the F. I. R. Exh.
6. The accused Fazal Din was produced before him by the complainant and other P. Ws. Whom he arrested and prepared such mashirnama Exh:
11. He sent him to the medical officer for medical check up. He visited the scene of offence and secured 'Nikar' of the girl (victim) along with the complainant and prepared such mashirnama Exh 10 in presence of Mashirs Muhammad Ahmed and Riazuddin. He then referred the girl for medical check up to the lady doctor who being on leave examined her on 1-10-1978. He recorded statements of P.
Ws. And handed over the papers to the S. H. O. Who challaned the accused.
4. The prosecution case is based on ocular testimony of Hussainuddin (P. W. 2), evidence of corroborative witnesses Khursheed (P. W. 3) Riazuddin (P. W. 4), complainant Abdul Hafeez P. W. 1, evidence of Mashir Suleman, medical officer Abdul Majeed who examined the accused, Dr. Surayya Siddiqui, who examined the girl (victim) and the Investigating Officer Riasat Ali P. W. 6.
5. The accused has denied the allegations and claimed to be innocent. He has further stated that he was living as a tenant in his house alongwith his minor son. The P. Ws. Wanted to eject him at the instance of the landlord and, they have therefore, foisted this case against him. He has also stated that he was physically unfit to perform sexual intercourse.
6. At the trial, the prosecution has examined Abdul Hafeez complainant who has stated the facts given by him in the F. I. R. Hussainudin (P. W. 2) has stated that he heard cries and so also the other people and they all went there. A person pushed open the door and he entered into the house of the accused. He found him sitting naked on the cot and had made the girl sitting on his thighs. He was forcibly committing rape on her. She was raising cries. Rasheed and Suleman were also there.
P. W. Suleman who is corroborative witness has supported P. W. Hussainuddin. He has stated that he found the accused sitting naked and was held by P. Ws. Hussainuddin and Rasheed. He also saw the girl (victim) naked and demanding her `Nikkar'. He asked the accused to wear his `Pajama' as many people of the locality had collected outside. He was the third man who had entered the house of the accused. They all took the accused to Police Station Phuleli from where they were directed to Police Station Market. Abdul Hafeez (P. W. 1) who is father of the girl also reached there and lodged the F. I. R. Khursheed Ahmed P. W. 3 is brother of the complainant and has stated that he was informed by the children that the accused Fazaldin had committed rape on his niece. He went to inform his brother who lodged the F. L R.
Riazuddin P. W. 4 is Mashir of scene of offence which vas inspected in his presence and that the accused was also arrested in his presence and such mashirnamas were prepared and be had signed them.
Dr. Surayya Siddiqui P. W. 8 is the Woman Medical Officer Incharge Medico-Legal Dispensary, Kotri Barrage, Hyderabad. Mst. Salma (victim) was examined by her on reference from A. S. I. Police Station Market, Hyderabad. She has stated that her labia major and minor being slightly swollen and reddish in colour, she was of the opinion that complete penetra--tion was not there. She issued such certificate Exh. 17.
Dr. Abdul Majeed P. W. 7 is the Medical Officer Medico-Legal Section L. M. C. H. Hyderabad. He examined the accused and issued such certificate Exh.
16. He is of the view that the accused had right Inguinal Hernia which could decrease his sexual potency but it could not render him altogether impotent.
7. The appellant has been produced from the jail today. He has stated that a false case has been set up against him by the landlord who wanted to eject him from the house which was occupied by him. The P. Ws. Also wanted to eject him and, they therefore, foisted this case against him at the instance of the landlord. He further claimed to be innocent and unfit to perform sexual intercourse.
8. Mr. Niaz Ahmed Khan, the learned counsel appearing for the State contends that the incident is of a broad daylight and the appellant as well as the girl (victim) have been found naked and the girl sitting on thighs of the accused obviously for the purposes of sexual intercourse with her. Dr. Surayya Siddiqui, has examined the girl (victim). She has found her major and minor labias slightly swollen and reddish in colour. She was of the opinion that there was attempt of rape on the girl though there was no complete penetration in this case. Dr. Abdul Majeed has examined the accused. He has certified that the accused was capable of performing sexual intercourse. The learned counsel for the State has further contended that no father would agree to set up a false case at the cost of infamy of her daughter. The prosecution has successfully proved its case beyond any reasonable doubt against the appellant. He places his reliance on 1973 SCMR 488.
9. I have considered the explanation of the appellant. I have also read the evidence on record and have given my anxious thought to what has been stated by the learned counsel for the State. The incident being admittedly of a broad daylight which has been witnessed by Hussainuddin who was followed by Suleman and their testimony was supported by the medical evidence. The appellant has not been able to examine any one in support of the case set up by him. I agree with the learned counsel for the State that no father will be prepared to consent to infamy of his infant daughter to oblige the landlord allegedly interested to eject the appellant. After careful consideration of all the aspects of the case including the case set up by the appellant as well as points raised by the learned counsel for State, I entirely agree with the conclusions of the trial Court.
The prosecution has undoubt--edly proved its case beyond reasonable doubt and the appellant has been rightly convicted and the sentences awarded to him are also proper and are accordingly maintained under the circumstances of the case.
10. In the result this appeal fails and is hereby dismissed.