Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Teli vs State Of J&K; on 10 October, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Cr. Appeal No.10/2014
Date of decision:10.10.2017
Manzoor Ahmad Teli v. State of J&K through P/S
Safakadal Srinagar.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Appellant(s): M/S: Molvi Aijaz & Syed Javed Ahmad,
Advocates.
For the Respondent(s): Mr. B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
1. Vide judgment impugned dated 22nd April, 2014 passed by the Court of 2nd Additional Session's Judge, Srinagar, the appellant- Manzoor Ahmad Teli, has been convicted for commission of offence punishable under Section 376 RPC, after hearing on quantum of sentence, vide order dated 09.05.2014, has been sentenced to undergo simple imprisonment of 10 years under Section 376(2)(f) RPC and a fine of Rs.10,000/, in default of payment of fine to undergo further simple imprisonment of six months. Cr. Appeal No.10/2014 Page 1 of 27
2. Registration of case on 10.11.2006 as FIR No.161/2006 P/S Saffa Kadal for commission of offence punishable under Section 376/511 RPC, on completion of investigation, culminated in filing charge sheet (challan) on 01.12.2006 for commission of offence under Section 376 RPC before the Court of Chief Judicial Magistrate, Srinagar. Same was assigned to the Court of Judicial Magistrate 1st Class (Judge Small Causes), Srinagar, who in turn committed the case to the Court of Principal Sessions Judge, Srinagar, wherefrom, vide order dated 14.12.2006, it has been transferred to the Court of 3rd Additional Session's Judge, Srinagar.
3. Court of 3rd Additional Sessions Judge, Srinagar, after hearing prosecution and the defence, vide order dated 20.12.2006 framed charge against the accused for commission of offence punishable under Section 376 RPC to which accused pleaded not guilty and claimed to be tried. Prosecution in support of its case, out of listed 10 witnesses, produced 9 witnesses. PW-9, witness to the seizure memo, has not been produced whereas PW-4 (prosecutrix) though produced but being child, after recording satisfaction, was opined Cr. Appeal No.10/2014 Page 2 of 27 not to be a competent witness to make the statement. prosecution evidence has been closed on 11.06.2009.
4. Accused was examined in terms of Section 342 Cr. P. C on 04.04.2012, incriminating circumstances were put to him. He denied complicity in the crime and added that he was never living in a rented accommodation at Zampa Kadal. He has been implicated which fact is supported by the prosecutrix when before the Court she stated that she does not know the accused. PW-2-mother of the prosecutrix, at the instance of her husband (PW-1) has given a false evidence. No witness from neighbourhood has been cited as a witness. PW-1 knew that he (accused) was to register a case against him in the Crime Branch, it is in view of that, he(accused) has been involved in a false case. In case occurrence would have taken place, then the witnesses to the occurrence would have caught hold of him right on spot. An incompetent investigating officer has prepared a false case against him. The prosecutrix in the Court has not stated that he (accused) committed wrong with her. For grabbing money, accused has been involved i.e. PW-5 (father of PW-1) for providing government job and driving licence had firstly taken R.20,000/ and Cr. Appeal No.10/2014 Page 3 of 27 then Rs.10,000/. Job was not provided, however, driving licence was provided. He (accused) had given the said money to PW-1 because his father (PW-5) would provide him job as he (PW-5) was serving in Fire Services Department.
5. Without following procedure as prescribed under Section 273 Cr. P. C, the accused was asked by trial court to produce evidence in defence. The defence did not produce any witness, as such, defence evidence was closed on 24.06.2010. The case was posted for final hearing.
6. Trial court record reveals that the case has been examined by learned Principal Session's Judge, Srinagar, noticing that the procedure under Section 273 Cr. P. C has not been followed, has in its order dated 04.04.2012 recorded that after hearing and examining the record in terms of Section 273 Cr. P. C, the accused is required to enter upon defence, in terms of Section 274 Cr. P. C, has been asked to enter upon defence and to adduce any evidence which he may have in defence. In defence accused has produced Cr. Appeal No.10/2014 Page 4 of 27 three witnesses. The defence evidence, at the request of counsel for the accused, was closed on 17.04.2013.
7. The case has been finally heard by the Fast Track Court learned 2nd Additional Session's Judge, Srinagar, impugned judgment and order recoding conviction and sentence respectively has been passed.
8. Heard learned counsel for the appellant as well as learned Sr. AAG at length. Before coming to the rival submissions, it shall be advantageous to precisely notice the factual background:
(i) PW-1 (father of the prosecutrix), his wife (PW-2) and the prosecutrix(PW-4) were residing in a rented room in a building situated at Zampa Kadal Chattabal. On 08.11.2006, in the morning, the prosecutrix, approximately four years of age, had gone for washing the face. She did not return for about 10 to 15 minutes. Her cries were heard. PW-1 came out, he heard cries coming from the room of the accused who too was occupying one room on rent in the same floor of the building. He (PW-1) knocked at the door, the accused Cr. Appeal No.10/2014 Page 5 of 27 opened the door, PW-1 saw his daughter naked lying on the bed. Noticing the same, he was stunned. The accused ran away. He (PW-1) took his daughter (prosecutrix) to his room. Both PW-1 and his wife were shell-shocked and wept.
In the meantime, PW-3 and Pw-5 also reached there. Initially PW-1 hesitated in reporting the matter to the police but finally lodged a report. EXPW-1, with Police Post, Bagiyas Chattabal. The Police Post forwarded a docket to Police Station, Saffakadal based on which case was registered as FIR No.161/2006 P/S Saffa Kadal for commission of offence punishable under Section 376/511 RPC. Investigation was entrusted to PW-10 Head Constable Basharat Hussain. During investigation it was proved that the accused had committed rape, therefore, charge sheet (challan) was presented against him for commission of offence punishable under Section 376 RPC.
(ii) Learned trial court after appreciating the entire evidence led by both prosecution as well as by the defence has concluded that the commission of offence by the accused is Cr. Appeal No.10/2014 Page 6 of 27 proved, as such, convicted him for commission of offence under Section 376 RPC and then after hearing the prosecution and the defence sentenced him as referred to in para 1 of the judgment.
9. Learned counsel for the appellant projected that:
1st, the trial court has not appreciated the evidence in its right perspective. Supporting this submission would submit that four witnesses cited as witness to the occurrence are the relative witnesses i.e. PW-1(father) PW-2(mother), PW-3(uncle) and PW- 5(step father of PW-1). Then added that PW-4 (prosecutrix) though declared as incompetent witness but to a question about identity of the accused said she does not know him which would suggest that the accused has been implicated. Further added that, in fact, PW-5 (step father of PW-1) had taken a huge sum of money from the accused for providing him government job and also for providing him driving licence. When he demanded money back, PW-5 could not pay the same, as a result whereof case has been concocted against the accused. Late filing of the FIR supports the same. Cr. Appeal No.10/2014 Page 7 of 27
2nd contention of learned counsel for the appellant is that no listed witness is a witness to the actual occurrence, therefore, their evidence is a hearsay.
Third contention of the learned counsel is that the defence evidence has been ignored when, in defence, it has been specifically stated and proved that the accused had never occupied any room on rent in the said building.
Fourth contended that the prosecution and defence witnesses stand on equal footing. Credibility of the prosecution and defence witnesses is similar. Trial court has committed an error in discarding the defence witnesses.
Fifth contended that there are major contradictions in the statements of the witnesses. The witnesses to the occurrence being relative witnesses, their testimony being partisan has been impeached. Decision of trial court regarding child to be incompetent witness can be disturbed by the appellate court as has been held in the case "Gola Yeluga Govinda Vs. State of A.P" (2008 Vol.2 Supreme 592).
Cr. Appeal No.10/2014 Page 8 of 27
Learned counsel in support of above contentions, relied on various judgments, i.e.:
1. 2002 (AIR) SC 620,
2. 2009 Vol. 2 Crimes Page 647,
3. 2000(0) Supreme (Pat) Page 519,
4. 1979 (0) Supreme (SC) 22,
5. 2014 Supreme (OR I) page 420, Kanu Charan Naik Vs. State of Orissa;
6. 1991 Vol. 1 Crimes, High court 675, Bashir Vs. State of J&K;
7. 2015(2) Crimes, High Court 38, Ranjit Mondal and others Vs. State of West Bengal;
8. 1983 Vol. 1 AIR SC 66, Meyur Pannabhai Shah Vs. State of Gujarat;
9. 2010 (1) JKJ 319; 2009 (0) Supreme (J&K) 490, Tirath Singh and Ors Vs. State and anr;
10. 2001(3) Crimes (SC) 55, State of Rajasthan Vs. Magni Ram; and
11. 2002(0) AIR 3582, Mohan Singh Vs. Prem Singh and anr;
10. Reference in detail to all referred judgments is not necessary because every case has its own facts and features, as such, are distinguishable or are inapplicable.
11. Learned Sr. AAG highlighted that the prosecutrix, in between the age group of 3/5 years, has been sexually assaulted by the accused which fact has been fully proved by the prosecution witnesses and supported by the medical evidence.
12. Considered the rival submissions.
Cr. Appeal No.10/2014 Page 9 of 27
13. No parent on earth can afford to falsely say that their four year old daughter has been subjected to rape. The truthfulness of the witnesses cannot be doubted as PW-1 and PW-2, parents of the girl, in unequivocal terms have stated that they did not report the matter to the police for two days as they thought that their whole family will be ashamed and humiliated but then when they were impressed upon by the neighbours that an offence has been committed, it should not be hushed up, it is only then report, EXPW-1, was lodged mentioning therein that the accused has attempted to commit the rape but medical evidence unraveled that rape has been committed.
14. In the report, EXPW-1, PW-1 has clearly mentioned that on 8th November, 2006, in the morning, his daughter (name withheld) was taken by a tenant-accused into his room and ravished her, to avoid humiliation he did not report the matter to the police in time because his daughter was just approximately four years old. On registration of the case, the prosecutrix on the same date was taken for medical examination i.e. on 10th November, 2006. PW-6, Dr. Fozia, on examination of the prosecutrix, has prepared the report, exhibited as EXPW-6, the opinion recorded therein is as under: Cr. Appeal No.10/2014 Page 10 of 27
"Opinion: Hymen not intact most likely intercourse has occurred.
There are various bruises in vulva and vagina. For age victim referred to Department of Radiology.
15. The age has been determined as 3- 5 years, which certificate is exhibited as EXPW-7.
16. The statements of the witnesses have been mentioned in detail in the judgment impugned. PW-1(father of the prosecutrix) has clearly stated that his daughter, just four years old, in the morning went for washing her face, after 15 minutes he heard her cries. He came out of his room and noticed that the cries of his daughter are coming from the room of the accused. He knocked at the door of the accused who opened the door and he found his daughter there and her trouser was lying there. He asked his daughter what happened, in reply she told that uncle (accused) opened her trouser, gave her Rs.5/(rupees five), sat on her. On this accused ran away. The witness sat in the room and started weeping because if anybody would hear about it, he would be humiliated. The incident took place on 08.11.2006 but the report was submitted to the police on 10.11.2006. Contents of the report are correct, same stand exhibited Cr. Appeal No.10/2014 Page 11 of 27 as EXPW-1. In the cross-examination, he (PW-1) qualified that he reported the matter on 3rd day of occurrence.
17. PW-2 (mother of the prosecutrix) has stated that the accused and her husband were occupying separate rooms in the second floor of the house on rent basis. The prosecutrix in the morning went for washing her face. After 10/15 minutes, they heard her cries. Her husband (PW-1) went out of his room and knocked the door of the accused which was located there. Accused opened the door, her husband found both accused and the prosecutrix without trousers which were lying on the floor. Her husband brought the prosecutrix in his room where she (witness) and PW-1 asked their daughter what happened, she replied that the uncle (accused) took her to his room, opened her trouser as well as his own trouser and committed wrong with her. To avoid notoriety, humiliation, they did not do anything but neighbours (Mohalla wallas) advised them that it would be better to report the matter to the police because the prosecutrix is small baby, there is no question of notoriety and it is because of that, after two days they reported the matter to the police.
Cr. Appeal No.10/2014 Page 12 of 27
18. Late filing of the FIR is well explained. In the facts and circumstances, it is a quite natural reaction of the parents to hide if anything bad happened with their daughter so as to avoid bad name and bleak future. Late filing of FIR in such circumstances is not fatal. No tutored version is forthcoming so as to hold that the complainant with any calculation or with any intent to wreak vengeance has lodged the FIR.
19. Rape with the prosecutrix, a four year old girl, initially was not actually clear to PW-1 and PW-2 but both have qualified as to what occurred on 8th November, 2006, how they heard cries of their daughter and how the accused ran away.
20. PW-3, Jahangir Malik, has stated that on the date of occurrence when he heard noise, he went to the place of occurrence and found accused running away very fast. While reaching to the rented room of PW-1, he came to know that accused had committed wrong with the prosecutrix. He took the prosecutrix in his lap who told him that the accused had opened her trouser as well as his own trouser and committed wrong with her.
Cr. Appeal No.10/2014 Page 13 of 27
21. PW-5, Abdul Ahad (step father of PW-1) has also stated that on 8th November, 2006, he heard noise from the room of PW-1. When he reached there, he saw the prosecutrix in the lap of her father. He also saw accused running away. PW-1 (father of the prosecutrix) was weeping. He (witness) enquired from the parents (PW-1 and PW-2) as to what has happened, they narrated as to what had happened. Then he asked the prosecutrix who in reply said that the accused took her into his room, opened her trouser as well as his own trouser and then showed by gestures as to what accused did to her. On 10th November, 2006, parents of the prosecutrix (PW- 1 and PW-2) along with PW-4 (prosecutrix) went to police station and lodged the report.
22. These four witnesses have given the natural sequence of events. Their testimony by no standard has been impeached. The circumstances as existed are fully proved by them.
23. Now the question is as to whether accused had committed rape with the prosecutrix?
Cr. Appeal No.10/2014 Page 14 of 27
24. PW-6, Dr. Fozia, who was posted in LD Hospital on 10.11.2006, in her statement recorded by the trial court, has stated that on 10th November, 2006, one minor girl, aged about four years, was brought to her by one ASI Abdul Rehman 775/S for examination. On examination she found the girl conscious maintaining the vitals. She found that the hymen of the prosecutrix was not intact. There were injuries/bruises on private parts including vagina and vulva. There were some injuries on the right medial side of the thigh. In her opinion, the girl had been subjected to sexual intercourse. She has recorded observations and the opinion which is available on the file, same is exhibited as EXPW-6. She has further qualified that the vaginal smear was sent for lab examination but no spermatozoa was detected. The girl was also referred for Radiological examination for age determination and as per Radiological opinion, her age was approximately 3 to 5 years.
In the cross-examination she has qualified that the injuries found on the private parts of the victim were unlikely to be sustained by fall or by inserting finger in the vagina. She did not find any blood stains on the private parts of the victim.
Cr. Appeal No.10/2014 Page 15 of 27
25. PW-7, Dr. Umar Sharief Kirmani, has qualified that the age of the prosecutrix was 3 to 5 years. He has recorded details of his examination in the certificate which is available on the file and bears his signature, its contents are true, same has been exhibited as EXPW-7.
26. PW-8, Ab. Rehman Najar, who was posted as Technician in SMHS Hospital, had, on examination, found accused to be potent.
27. Medical evidence as noticed hereinabove clearly supports the fact that the prosecutrix was subjected to intercourse, so the act of intercourse has been proved. The accused, on examination, has been found to be potent. The ocular and medical evidence fully supported the actual occurrence and the actual act of rape. The credibility of prosecution witnesses, both ocular and medical, in any manner, has not been impeached.
28. Learned counsel for the appellant tried to persuade that when prosecutrix was produced before the trial court, she did not identify the accused, therefore, accused has been implicated. Such a contention of the learned counsel is misplaced. Prosecutrix (a child), Cr. Appeal No.10/2014 Page 16 of 27 as a matter of fact, was produced as a witness on 25th June, 2007. Learned trial court has put her certain questions so as to ascertain whether she shall be able to answer the questions rationally, noticing her answers irrational, has been declared as incompetent witness. In Urdu language, the questions put and answers given by the prosecutrix as recorded are quoted here-under in translated version: -
Q. With whom you have come?
Ans: With my mother.
Q. Do you know where are you standing?
Ans: No Q. In which class do you read?
Ans: I am reading in LKG.
Q. What is name of the school?
Ans: Zoom English Medium School.
Q. Can you identify any one here?
Ans: No. Q. Can you say for what your mother has brought you to the Court?
Ans: No. Q. Can you identify accused person in the Court? Ans: No. After the said question answer series, learned trial court has recorded that the questions were put to the witness (minor) so as to ascertain as to whether she is competent to make statement, then Cr. Appeal No.10/2014 Page 17 of 27 has recorded satisfaction that the witness due to tender age is not able to make any statement and was, accordingly, relieved.
29. Learned counsel for the appellant highlighted the question and answer thereto i.e. the prosecutrix did not identify the accused present in the Court. Contention is misplaced. Aforesaid all questions were put to prosecutrix so as to ascertain as to whether she shall be able to understand rationally so as to be declared competent or incompetent witness. Her simple answer "No" to four questions by itself was enough to hold her incompetent to depose as a witness.
30. The contention that the whole case has been concocted, i.e. PW-1 had taken Rs.20,000/ from the accused so as to provide employment to the accused through PW-5 (father of PW-1) and Rs.10,000/ for providing license, is nothing but a false theory.
31. In the examination under Section 342 Cr. P. C accused has introduced the said false theory. Firstly, PW-1 is not the father of PW-1. As a matter of fact, he is step father of PW-1. In case there would have been a grain of truth about payment of Rs.20,000/ for Cr. Appeal No.10/2014 Page 18 of 27 providing job, at least such a question during cross examination of PW-1 and PW-5 would have been put to them. No such question, directly or indirectly, has been put to PW-1 or to PW-5 which in turn would suggest that it is an afterthought theory. Even regarding Rs.10,000/ for providing licence, no question has been put nor it has been proved anywhere that any such driving licence was provided to the accused by PW-1 or PW-5. Lie has no legs to stand upon.
32. Apart from aforesaid theory as has been attempted to be introduced, even if it would have been so, when actually it is not so, still no parent on earth for any amount what to speak of such a petty amount would go to the extent of cooking up a theory that his minor daughter has been ravished. The accused, after having committed a heinous crime, has now made abortive attempt to give it a different colour by saying that a case has been concocted and for avoiding repayment of Rs.20,000/ he has been implicated. During cross- examination, directly or indirectly, no question regarding payment of amount for providing employment or for providing license has been put to the prosecution witnesses who have been examined. Cr. Appeal No.10/2014 Page 19 of 27
33. Contention of the learned counsel for the appellant that the defence evidence has been ignored is totally without any substance. The prosecution on its own footing fully proved the charge against the accused. It is true that for prosecution, principle of strict standard of proof is to be followed whereas in case of defence, the principle of proof is by preponderance of probabilities i.e. defence must be probable. Firstly, defence taken by the accused, that too at the stage of his examination under Section 342 Cr. P. C, on the face of it is not convincing even by probable standards, then coming to the defence witnesses, position becomes worst.
34. DW-1(Shabir Ahmad Malik) has stated that in the year 2006, he was residing at Zampa Kadal Chattabal on rent in the house of Aijaz Ahmad Khan. In the said house PW-1 was also residing on rent. Witness had good relation with PW-1. Accused was selling fruit in Batamaloo Bus Stand, that is how he knows him. The witness had not seen the accused there at his residence. On 8th November, 2006, the witness was available in his room and used to leave the room by 9.00AM. To his knowledge, on the said date nothing extraordinary happened, however, after 1-2 days police came on spot. Aijaz Cr. Appeal No.10/2014 Page 20 of 27 Ahmad used to collect rent from him(witness). He does not known as to whether PW-1 and the accused have any enmity, however, PW-1 was a gentle person. He(witness) cannot say as to whether PW-1 has wrongly implicated the accused. It is correct that a respectable and self-confident person would never stigmatize his innocent daughter by saying that she has been raped nor any father can openly afford to destroy the respect of 3/4 year old daughter. He cannot say where the accused was residing on the date of occurrence, however, was not residing in the said building.
35. DW-2 (Mushtaq Ahmad Khan) has stated that the accused is known to him. Witness used to reside in his house at Zampa Kadal. He had given the house on rent. Since his father is deaf and blind, so he used to collect rent. One room was under the occupation of PW-1. He had not given any room on rent to the accused. He has no knowledge about the occurrence of 08.11.2006. PW-1 was a tenant of his father. He (PW-1) was not paying rent to the witness. In the year 2002, he (witness) migrated from Zampa Kadal to HMT which is at a distance of 8 kilometers, used to go to the tenant, he does not know. Then has also qualified that PW-1 is a very good Cr. Appeal No.10/2014 Page 21 of 27 person and used to pay rent on time, is an honest person. His wife is also very good. Respect of a daughter is dear to everyone. It would have been unbearable for PW-1 to stigmatize his daughter.
36. DW-3(Imtiyaz Ahmad) has stated that PW-5 is the step father of PW-1. PW-5 was working in Fire Service Department. Accused told him(witness) that PW-5 is working in Fire Service Department and has assured him (accused) to provide him employment but he had to be paid Rs.80,000/ out of which accused paid Rs.30,000/ to Abdul Ahad Bhat (PW-5) and remaining amount was to be paid at the time of issue of order. Abdul Ahad Bhat (PW-5) and accused came to his shop. PW-5 said that the accused should pay Rs.50,000/ first, thereafter he will bring the order for employment but he(PW-5) did not provide the appointment order. PW-5 was asked to return Rs.30,000/ but he said that he has paid the same to his officer. He(witness) advised the accused to lodge a case against Abdul Ahad Bhat (PW-5) in Crime Branch but for grabbing the money, PW- 5 cooked up a case. It is Abdul Ahad Bhat (PW-5) who, in connivance with other witnesses, got a case registered against the accused.
Cr. Appeal No.10/2014 Page 22 of 27
37. As stated in the earlier part of the judgment, that lie has no legs to stand upon, same is totally exposed by DW-3 Imtiyaz Ahmad. In the statement recorded under Section 342 Cr. P. C, it is the accused who has mentioned that the father of PW-1 had firstly taken Rs.20,000/ and then Rs.10,000/ from him. He has nowhere stated that Rs.80,000/ were settled to be paid to PW-5 Abdul Ahad Bhat for providing him employment. He has stated that first he paid Rs.20,000/ for employment and then Rs.10,000/ for licence, the licence was provided but employment was not provided. DW Imtiyaz Ahmad in his statement has given a new theory that for getting an employment order, accused had settled Rs.80,000/ to be paid to PW-5 but PW-5 after receiving Rs.30,000/ asked the accused to pay Rs.50,000/, so a theory contrary to what the accused projected while examined under Section 342 Cr. P. C.
38. Again a strange interesting situation. Could parents of the prosecutrix go to the extent of alleging rape having been committed with their four year old daughter by the accused so as to help the step father PW-5 to grab the money of the accused, if at all same would have been paid to him, answer has to be no, more so when Cr. Appeal No.10/2014 Page 23 of 27 the defence, for the stated reasons, is an afterthought story based on concoction.
39. It is true that PWs-1, 2, 3 and 5, cited as witness to the occurrence, are related witnesses but their evidence cannot be discarded simply because of being related witnesses. Their testimony has to be appreciated with great circumspection so as to avoid un-necessary implication. Given the fact position of the case and the circumstances, the position of minor girl just 3 to 5 years of age, then the circumstances in which occurrence has taken place leaves no scope for the Court to disbelieve testimony of such witnesses who, in natural sequence of events, have truthfully stated what had happened. There could be no reason for PW-1(father) and PW-2(mother) to expose the position of their minor daughter and then to expose their own prestige in the society.
40. Learned counsel for the appellant tried to project that the place of occurrence as reflected in the site plan, EXPW-10, is ambiguous. In the said site plan, place of occurrence is shown at mark 'A' whereas rented room of the accused is shown at mark 'B'. Learned Cr. Appeal No.10/2014 Page 24 of 27 trial court has explained it, in order to make it more clear, in the site plan at serial No.1, it is clearly shown that mark 'A' is house of Mushtaq Ahmad Khan and reference to second storey of the house where occurrence in the room of the accused mark 'B' has taken place, therefore, there is no ambiguity and suspicion.
41. Learned trial court has properly appreciated the entire evidence and has rightly come to the conclusion that the accused has committed the rape, therefore, has rightly convicted him for commission of offence under Section 376 RPC, as such, judgement impugned recording conviction does not call for any interference. Such type of shameless accused for satisfying devilish lust not sparing a young baby just 3 to 5 years of age are absolutely inhuman, threatening the humanity.
42. While recording sentence vide order dated 09.05.2014, learned trial court has erred in awarding simple imprisonment of 10 years under Section 376(2)(f) RPC. Section 376(2)(i) RPC applies not clause (f). Punishment for all clauses under sub-section (2) of Section 376 RPC is rigorous imprisonment for a term which shall not Cr. Appeal No.10/2014 Page 25 of 27 be less than ten years but which may extend to imprisonment for life and also fine. Awarding of simple imprisonment is not prescribed, therefore, to the same extent order of sentence is modified. Accused is sentenced to undergo rigorous imprisonment of ten years for commission of offence punishable under Section 376(2)(i) RPC and a fine of Rs.10,000. In default of payment of fine, accused shall have to undergo rigorous imprisonment of six months. The period already undergone during investigation, trial and after sentence bet set off against the sentence awarded.
43. For the stated reasons, conviction and sentence subject to modification as indicated above is upheld. Appeal being devoid of merit is, accordingly, dismissed.
44. Under Jammu and Kashmir Victim Compensation Scheme, 2013 notified vide SRO 229 dated 23.09.2013, victim is entitled to compensation. Learned Sessions Judge, Srinagar (Chairman, District Legal Services Authority) shall examine and grant an amount of Rs.2,00,000(rupees two lacs) as compensation in favour of the victim, as permissible in accordance with the said scheme, which, Cr. Appeal No.10/2014 Page 26 of 27 on sanction, shall be kept in fixed term deposit in the name of prosecutrix for a period of six years
45. Copy of judgment along with trial Court record be sent to the learned trial Court and a copy to learned Sessions Judge Srinagar. Superintendent Jail concerned be also informed accordingly.
(Mohammad Yaqoob Mir) Judge Srinagar 10.10.2017 "Bhat Altaf, PS"
Cr. Appeal No.10/2014 Page 27 of 27