State of Gujarat vs Mohammadfurkan Mohammadsuleman Siddiqi

Akil Kureshi, J.—Both the appeals arise out of the same judgment of the learned Sessions Judge, Kutch at Bhuj dated 28.06.2011 rendered in Sessions Case No. 8 of 2010. Mohammadfurkan Mohammadsuleman - original accused was charged with the offences punishable u/s 376 of Indian Penal Code. By the impugned judgment he was convicted for the said offence and sentenced to R.I. of 7 years. Fine was also imposed. He has thereupon challenged his conviction and sentence by filing Criminal Appeal No. 611 of 2012. The State seeking enhancement of the sentence has filed Criminal Appeal No. 1220 of 2011. Both these appeals are consolidated, heard together and would be disposed of by this judgment. Briefly stated, the prosecution version was that the accused Mohammadfurkan Mohammadsuleman was residing at Mundra along with his wife Mehrunisha and stepdaughter (hereinafter referred to as ''the victim'') aged about 15 years and his son. The accused used to frequently commit sexual intercourse on the victim. In the night of 2nd/3rd November, 2009 the accused had sexual intercourse with his minor stepdaughter, who was studying in 4th standard in a school at Mundra. In the morning, when the mother woke up the daughter for going to the school, the daughter started crying. After the accused left for work, the daughter confided into the mother about the incident of the night before and also told her that this has been going on since quite sometime. The mother thereupon approached the nearby police station and lodged FIR on 04.11.2009 (Exh. 18).

The charge was framed at Exh. 11 alleging that the accused in the night of 2nd/3rd November, 2009, had committed rape on the victim aged about 15 years. Previously also, on several occasions, he had similarly forcibly committed sexual intercourse on her. He had, thus, committed the offence punishable u/s 376 of IPC.

The first informant - Mehrunisha, P.W. 1 was examined at Exh. 17. She deposed that she resided with her husband, husband�s son Mohammad Gulfam and her daughter S. at Mundra. The incident took place in the year 2009. At night she noticed that her husband was not sleeping next to her. He had gone inside the room where her daughter was sleeping. In the morning, when she woke up her daughter, she started crying and complained that the father had sex with her. She also found condoms from the bed of her daughter. The daughter also told her that previously whenever the father got a chance, he would have intercourse with her. She was crying. A few months before the incident also he had misbehaved with the daughter. A month before the incident also he had taken liberties with the daughter. She had seen such incident. When the daughter confided in her, she called up her husband at his office in Zindal Co. He therefore returned from the factory and pleaded his innocence. She went to the police station to lodge the FIR. She identified the condom covers which were found from the bed. She also identified the clothes and the Duppata of her daughter.

3.1. In the cross-examination, she stated that she had washed the clothes of her husband after the incident. She was previously married and also had children from the earlier marriage. She agreed that she gave only the covers of the condom but not the actually used condom to the police. She denied that since she and accused belonged to different religions, to get out of the marriage, she had filed a false complaint.

The victim girl S., P.W. 2 was examined at Exh. 19. The evidence was recorded in-camera. She deposed that when her mother was sleeping the accused had intercourse with her. He had covered the face and removed the clothes before doing it. He had used a condom. She was too scared to inform the mother at night. When the father left home for work and mother woke her up for going to school, she narrated the incident to the mother. Earlier also when the mother had gone to fetch her parents, the accused had committed such acts. She was extremely scared and therefore could not complain to her mother about the behavior of the accused. After she narrated the incident to the mother she also found the condom from the bed.

4.1. In the cross-examination, she denied that she did not understand what intercourse means or that she had filed a false complaint upon being instructed by the mother.

Several panch-witnesses turned hostile. The panchnamas of recovery of various articles such as clothes, condoms etc. were not supported by the panch-witnesses.

We would however refer to the evidence of Dr. Patanjali Dwivedi, P.W. 13, Exh. 35. She had carried out the physical examination of both, the victim as well as the accused. She deposed that on 03.11.2009, when she was working as a Medical Officer at Community Health Centre, Mundra, the victim was brought before her by the police for physical examination. She had inquired with the victim and recorded the history of being raped by the father in the night of 2nd November when the mother was sleeping outside. She stated that the condom was used. She was, however, not familiar with the concept of penetration. She had taken bath and changed her clothes.

6.1. The witness did not find any signs of injuries on the victim. She found her physically well developed. She could not detect presence of hymen. She opined that recent sexual activity cannot be ruled out.

6.2. She had carried out the physical examination of the accused on 05.11.2009. The accused was aged about 45 years. His body also did not indicate any sign of violence. The doctor found him capable of sexual intercourse.

6.3. The doctor had taken various samples from the victim including vaginal swab and cervical smear. She had also taken samples from the accused such as the semen, blood etc.

The Investigating Officer Jaysukh Devjibhai Vaghela, P.W. 15 was examined at Exh. 43. He indicated the different steps undertaken by him for carrying out the investigation. He explained that he had recorded the complaint of the mother since the victim herself was at that time extremely scared. He had, however, recorded her statement on the same day. He denied that the victim girl was mentally retarded. He, however, admitted that he had not taken report of a psychiatrist in this respect. He agreed that the complainant had supplied only the condom wrappers and unused condoms. The used condom could not be found.

Various samples collected from the body of the victim and the accused were sent for forensic analysis. The FSL Report was produced at Exh. 48. Serological Report was produced at Exh. 50. The combined reading of such reports would suggest that from the vaginal swab and cervical smear, presence of semen was detected. The group thereof was undecided. We may also record that the victim had blood group ''B'' and the accused had blood group ''O''.

This in the nutshell is the evidence on record.

On the basis of such evidence, Mr. Kazi, learned advocate for the appellant - accused submitted that the learned trial Judge has committed serious error in convicting the accused. The evidence of complainant and the victim were inconsistent. There was no other corroboration. The entire incident was a got up one to enable the complainant to get out from the marriage with the accused who belongs to another religion.

On the other hand, learned APP Shri Jani, in addition to supporting the conviction, submitted that the sentence was inadequate. The accused was the stepfather of the minor girl. The charge was thus extremely serious.

If we re-appreciate the evidence, in clear terms we have the version of the victim herself of the accused having committed acts of sexual intercourse with her not only on the night of 2nd/3rd November 2009 but frequently earlier also. The girl was aged barely about 15 years. She was the stepdaughter of the accused. She resided with the accused, her mother and her stepbrother i.e. the son of the accused in the same house. On the night of 2nd November 2009, according to this witness, the accused forcibly committed sexual intercourse with her. Being too scared, she could not complain about this to the mother. In the morning when the father left for work and mother woke her up for going to the school, she started crying and narrated the entire incident. She also confided in the mother that this was not the first time it had happened.

We have no hesitation in accepting the version of this witness. She was a young girl in her early teens. She had no animosity with the accused. She had no reason to falsely implicate him. Ordinarily, for a minor girl to make such accusation against her own stepfather, it would take lot of courage. No major contradictions are extracted in the cross-examination of this witness.

The mother of the victim - the complainant herself, though was not an eyewitness, her evidence was vital. It was this witness to whom the victim confided in the morning of 3rd November 2009 about the incident of the previous night. The mother thereupon called her husband back from the work. He pleaded his innocence. The mother insisted on filing a police complaint and thus in the evening of 3rd November 2009 itself the FIR was lodged.

In addition to recounting what the victim had confided in her on the next morning, this witness also deposed about the suspicious movements of the accused on earlier occasions. She had seen the accused taking liberties with the daughter about 4 months before the incident as well as once more about a month back. In addition to such indecent behavior which the witness saw the accused committing with the victim, she also found wrappers of condoms and unused condoms from the bed of the victim.

Here also we have no reason to discard the testimony of this witness. There was no previous animosity. In fact she was the wife of the accused. They all resided together in the same house. The daughter was from her previous marriage. The son was from the previous marriage of the accused. All four were sharing the house since several years. Earlier to this incident, there was no hint of any ill-will between the accused and the complainant. There was no reason for her to make such serious allegations of rape against her own husband involving her own daughter.

The testimonies of these witnesses get further corroboration from the medical as well as the forensic evidence. Dr. Dwivedi, P.W. 13, though did not notice any sign of violence either on the body of the victim or the accused - which was by the very nature of things to be accepted as a young girl aged 15 years could not be expected to put up any physical resistance to the advances of her own stepfather - did find the girl physically developed, the hymen missing and in her opinion the possibility of recent sexual activity cannot be ruled out. With respect to the accused she found him physically well developed and potent.

In addition to such medical evidence, the Serological Report also further corroborates the theory of sexual intercourse. Though the victim had changed her cloths and also had a bath before she was examined by the doctor, the vaginal swab and the cervical smear collected by the doctor detected presence of semen.

In addition to the evidence of the victim and her mother, the expert evidence also supports the prosecution. We therefore have no reason to upset the finding of conviction recorded by the learned trial Judge. The victim girl was below 16 years of age, her consent was thus wholly irrelevant. In any case there is not even a hint of any consent on her part. The accused was aged about 45 years and was the stepfather of the victim who was aged about 15 years. In the morning of 3rd November 2009, when she narrated the incident to the mother she was crying. She was, according to her testimony, overpowered by the accused. If such a young girl could not put up any resistance to the advances of her stepfather, who was aged about 45 years, it would hardly be a surprising conduct on her part. The medical evidence suggests that the victim was barely 37 kg. weight. Quite apart from her father�s superior physical strength (his weight was recorded 60 kg), the position of dominance which he enjoyed over her would leave any chance of physical resistance of the victim absolutely feeble. This cannot be equated with her consent. If, therefore, she could not resist her stepfather''s previous advances and gather sufficient courage to inform her mother about it, it can hardly be unusual. All in all, we have no reason to disbelieve the version of the victim and the testimony of her mother. The conviction of the accused, therefore, must be confirmed.

Coming to the question of sentence, Section 376 of IPC provides for minimum sentence of 7 years, unless for the special reasons to be recorded in the judgment the Court awards any lesser punishment. The trial Court had, thus, awarded minimum punishment of 7 years prescribed under the said section. The maximum punishment prescribed thereof is life imprisonment. The present case, considering its facts, is not one which qualifies for minimum sentence. The accused was 45 years of age. The victim was hardly 15 years of age studying in 5th standard in the school. The accused had taken disadvantage of his position and committed the act which was of gross abuse of his position and power in the family. Under the circumstances, his sentence is enhanced to that of 10 years R.I. In the result, the appeals are disposed of with following directions:

(I) Criminal Appeal No. 611 of 2012 is dismissed. Conviction of the accused for the offence punishable u/s 376 of IPC is confirmed.

(II) State appeal being Criminal Appeal No. 1220 of 2011 is partially allowed. The sentence of the accused for the offence u/s 376 of IPC is enhanced to 10 years R.I. The judgment of the learned trial Court is modified to the above extent.

(III) Direction for payment of fine remains unchanged.

The R & P be transmitted back to the learned trial Court.