JAKIRHUSSAIN AHMEDMIYAN SHEIKH Vs. STATE OF GUJARAT
LAWS(GJH)-2013-10-374
HIGH COURT OF GUJARAT
Decided on October 23,2013

Jakirhussain Ahmedmiyan Sheikh Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.)THESE appeals arise out of a judgement dated 30.11.2011 rendered by the learned Additional Sessions Judge, Nadiad, in Special Case No.48/2010. Jakirhussain Ahmedmiyan Sheikh, original accused, was charged for offences punishable under section 376 of IPC and section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act ['the Atrocities Act' for short]. He was convicted for offence under section 376 but was acquitted of offence under the Atrocities Act. By the impugned judgement, he was sentenced to imprisonment for four years. He has challenged his conviction and sentence by filing Criminal Appeal No.25/2012. The State has filed Criminal Appeal No.92/2012 seeking enhancement of the sentence.
(2.)BROADLY stated, the prosecution version was that on 16.4.2010, in the evening hour the complainant along with her husband and minor daughter had gone to collect firewood in the sim of village Deroliya. Husband of the victim left the wife and daughter to fetch the water. Taking advantage of the loneliness of the victim at an isolated place, the accused caught her, made her fall on the ground and thereafter, committed forcible intercourse with her and thus committed offence under section 376 of the IPC. The victim girl belonged to Scheduled caste. Charge under section 3(1)(xi) of the Atrocities Act was also therefore, added.
(3.)THE victim, PW1, exh.10, deposed that she lived with her husband, three children and her inlaws. The accused lived nearby. On 16.4.2010, at about 4 O' clock in the afternoon, she had gone to the sim of village Deroliya along with her husband and daughter to get firewood. When she was collecting the firewood in a 'naliya' ( a dry seasonal water channel), her husband went to get water. At that time Jakir caught her, made her to fall down on the ground, lifted her petticoat and thereafter, committed rape on her. She started shouting. In the meantime, her husband arrived. A scuffle ensued between her husband and the accused, during which the accused got hit on the head with a dhariya. In a naked condition he ran away. A Bharward came there and took away his pant. She filed the complaint before the police which was produced at exh.11. She identified the accused before the Court.
3.1. In the cross examination, she admitted that she and the accused were neighbours. At the place of the incident, there were fields around. She denied that her husband suspected of her having illicit relations with the accused since three to four years. The naliya was about 5ft deep. If a person was sitting or sleeping, he could not be seen. At the place of incident, there were thorny bushes and wild babool trees and other dry bushes grown. The accused had thrown her on such dry bushes due to which she got scratches on her back. She had struggled to get away from the accused due to which she got scratches on her face and chest. She stated that her husband arrived after the rape was completed but soon changed that he arrived when the accused was still raping her. When her husband hit the accused with a dhariya, he started bleeding from the head. She admitted that when her husband gave a dhariya blow to the accused, they thought that he had died. They therefore, ran away from there and went straight to the village Jargal. She did not know where her husband had gone. Initially, she went to the police station but her complaint was not taken. Second time she went with her father. She admitted that in the complaint she did not mention about the scuffle between her husband and the accused during which the accused had got injured with a dhariya. She had not mentioned about Bharwad having come to fetch the pant. The clothes which she was wearing at the time of incident, she kept them on for two days. Though she agreed that she takes bath everyday and washes her clothes, she stated that she had gone to the police station wearing the same clothes as she was wearing at the time of the incident. Her relatives Somabhai and Jayantibhai had accompanied her when she had gone to lodge the FIR. She admitted that the FIR was lodged five days after her husband gave a dhariya blow to the accused. She denied that her relatives had ensured filing of false complaint to save her husband of the charge of assaulting Jakir. She however, admitted that her family paid Rs.6000/to Jakir because of the injury caused to him.

3.2. In the FIR exh.11, after narrating the incident of the accused committing rape on her taking advantage of her loneliness, she had stated that in the meantime her husband came with a dhariya and gave one blow to the accused. She had not mentioned anything about the scuffle and accidentally the accused getting injured with dhariya.

The husband of the victim, Kalidas Babarbhai Vasava, PW2, was examined at exh.18. He deposed that on 16.4.2010, he had gone for collecting the firewood. His daughter was crying for water. He therefore, went to get water. When he was returning, he heard his wife shouting. He saw that the accused had mounted her and was committing intercourse. At that time during a scuffle, Jakir got hurt with dhariya. When Jakir snatched away the dhariya from him, he and his wife and daughter ran away.

4.1. In the cross examination, he stated that his wife had gone with Jayantibhai to lodge the complaint, Jayantibhai had given the complaint, his wife had only put the thumb impression. He admitted that his wife had informed him after coming out of naliya about the incident. Contrary to his wife's assertion he denied that thinking that Jakir had died, he had ran away from the place. He however, agreed that as soon as Jakir got hurt, he ran away. What happened to Jakir thereafter, he did not know. He also stated that his wife takes bath everyday and also washes her clothes. In the later portion of the cross examination, he again agreed that it was his wife who informed him about the incident of rape. He denied that in order to ensure a compromise in the assault case of Jakir, after five days the present complaint was filed.



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