- (1.) APPELLANTS Sharful Haque and Howra Dushad along with appellant Shamsher Quaraishi have been found and held guilty by common judgment passed in Sessions Trial No. 291 of 1991 by the Sessions Judge, West Singhbhum at Chaibasa on 3rd August 2000. Both the appeals arise out of the same judgment and have been taken together for disposal. The learned Sessions Judge has held all the appellants guilty under S.366A / 34 of the Indian Penal Code and sentenced them to serve rigorous imprisonment for six years. Appellant Shamsher Quaraishi has further been held guilty under S.376 of the Indian Penal Code and sentenced separately to serve rigorous imprisonment for ten years.
(2.) THE prosecution story, in brief, is that appellant Shamsher Quaraishi and Howrah Dusadh were known to the family of informant Dukhiya Bhuiyan and used to visit his house frequently. It is alleged that in the evening of 14-9-1989 while the minor daughter of the informant Turky Kumari along with her step - mother Nilmani was drawing water from hand pump, at about 8.00 P.M., appellant Howrah Dusadh came and asked her to accompany as appellant Shamsher Quaraishi was waiting for her. Thereafter, Turky Kumari did not return till night when the informant came back to his house. He was informed by Nilmani about the incident. Prosecution case further is that Dhukhiya Bhuiyan searched his daughter in the night and next morning when he was informed by some one that Turky Kumari was seen with appellant Shamsher Quaraishi at Jagarnathpur. Thereafter, the matter was reported to the Muffasil Police, Chaibasa and police came into action. According to the prosecution story when the police reached Jagarnathpur at the house of appellant Sharful Haque, the Mama of appellant Shamsher Quaraishi, the girl was recovered with the appellant Shamsher Quaraishi. Police caught all of them and started investigation. The police further seized some silver ornaments and clothes of Turky Kumari from the house of appellant Sharful Haque. Police recorded the statement of Turky Kumari where she disclosed that she was forcibly taken away by appellant Shamsher Quaraishi and subjected to rape twice upon her. She further alleged that her ornaments were taken away by appellant Shamsher Quaraishi forcibly. The girl was sent for medical examination vide Ext. 3. The police finally submitted charge - sheet against all the three appellants under S.366/34 of the Indian Penal Code and under S.376 of the Indian Penal Code only against appellant Shamsher Quaraishi. Their case was committed to the Court of Sessions for trial. The trial Court after examining the witnesses found and held all of them guilty under S.366A 34 of the Indian Penal Code while appellant Shamsher Quaraishi was further held guilty under S.376 of the Indian Penal Code and accordingly sentenced them.
(3.) FOR better appreciation of the grounds, appeal was filed separately by appellant Shamsher Quaraishi and two others. Appellants Howra Dusadh and Sharful Haque who have preferred Criminal Appeal No. 292 of 2000, it is asserted for appellant Howra Dusadh that the learned trial Court has not considered the facts on record that Howra Dusadh has only informed Turky Kumari regarding Shamsher Quaraishi waiting for him and he has not taken active participation in the alleged offence under S.366A. It is also asserted that on this information, the said Turky Kumari herself accompanied Howra Dusadh to meet Shamsher Quaraish without any force, abduction or inducement. The memo of appeal further mentions that the information given by appellant Howra Dusadh that appellant Shamsher Quaraishi was waiting for her cannot attribute any criminal intention against the appellant Howra Dusadh. Similarly, it is submitted that presence of appellant Shamsher Quaraishi and the victim Turky Kumari in the house of Sharful Haque does not constitute any offence because appellant Shamsher Quaraishi was related with Sharful Haque and appellant Sharful Haque has not committed any offence by giving shelter to them. So far as the grounds of appeal in Criminal Appeal No. 319 of 2000 is concerned, the plea is taken that Turky Kumari was known to appellant Shamsher Quaraishi, who was seen in wondering at Jagarnathpur and he tried to help her giving shelter in the house of his Mama, but he has been falsely implicated in this case. The memo of appeal further mentions that the charge under S.366A of the Indian Penal Code fails because the girl was aged 18 years and she has herself gone with appellant Shamsher Quaraishi without any inducement or force etc. It is also asserted that the allegation of rape fails in absence of any medical evidence and non - examination of the I.O. as well as the doctor. Much stress has been led that the girl was aged 18 years and used to have sexual intercourse prior to this occurrence showing that her hymen having old rupture with no sing of rape.;