Rape Case ACQUITTED in Compromise
Acquittal of accused on no objection of victim affidavits under section 265-k
[Sindh]
Before Riazat Ali Sahar, J
ABDUL WAHEED---Applicant
versus
Mst. DAI and another---Respondents
Criminal Revision Application No.S-35 of 2010, decided on 6th August, 2012.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 265-K---Penal Code (XLV of 1860), Ss. 376/344---Rape, wrongful confinement for ten or more days---Quashing of proceedings---Accused was alleged to have repeatedly committed rape with his domestic servants (victims) over a period of nine months and also allegedly kept the victims illegally confined in his house---Application of accused under S.265-K, Cr.P.C had been dismissed by Trial Court---Contentions of the accused were that he was residing in his house with his family members, therefore, it was impossible for him to commit rape; that victims had never raised cries or complaint to any of the family members of the accused; that there was a delay of about 9 months in lodging of F.I.R., and that allegation was levelled without any corroborative evidence including medical evidence---Validity---F.I.R. was delayed by about 9 months, during which period victims had never complained to any family member of the accused or some one else, despite residing with the family of the accused---Medical Officer had opined in the medical certificate that action of rape was excluded---Victims had filed their no objection statements and affidavits, in which they stated that they would not object if accused was acquitted under S.265-K, Cr.P.C---Revision application was allowed, order of Trial Court was set aside and accused was acquitted by quashing proceedings of the Trial Court.
(b) Penal Code (XLV of 1860)---
----S. 376---Rape---Proof---Offence of rape cannot be proved without corroboration of medical evidence.
Syed Madad Ali Shah for Applicant.
Shahzado Saleem, A.P.-G. for the State.
Abdul Salam Abbasi for Respondent No.1.
ORDER
RIAZAT ALI SAHAR, J.---Through this Criminal Revision Application, applicant Abdul Waheed son of Abdullah Khan has challenged the order dated 25-2-2010 passed by learned Sessions Judge, Umerkot, whereby he dismissed the application under section 265-K, Cr.P.C. of the applicant.
Allegations against the applicant/ accused are that Mst. Dai, her husband Muhammad Hassan and her younger sister Miss Mirzadi aged about 13 years working as haries under the control of applicant who is a zamindar of his land in deh Hanifabad, Taluka Samaro. About 9 months before 26th July, 2009 applicant ordered Mst. Dai and her sister Mirzadi to work as domestic maids inside his house. It is further alleged that thereafter they were brought in the house of applicant where he repeatedly committed offences of Zina-bil-jabr (rape) continuously for nine months. In spite of protests by victims, they were forcibly confined there till Sunday the 26th July, 2009 they were allowed to leave the house of applicant along with Muhammad Hassan. They complained the matter to their relative Ishaque Solangi at Hyderabad, who took them to Police Station, Hyderabad from where they went to Sessions Court, Hyderabad for lodging of F.I.R. against the applicant for offences committed upon both the victims. The Sessions Court Hyderabad directed them to approach the proper authorities at Umerkot which was done and an F.I.R. No.67 of 2009 dated 30-7-2009 was lodged at Police Station, Samaro. The applicant is on bail and the charge has been framed against the applicant for offences under sections 344 and 376, P.P.C.
Learned counsel for the applicant contends that the story as set up in the F.I.R. on the face of it appears to be false, baseless and concocted and there is considerable delay of 8/9 months in lodging the F.I.R. He further contends that there is no allegation that complainant or her sister Mirzadi had ever raised cries or complained to any of the family members of the applicant in respect of alleged act of rape with them and the applicant is residing in the house with his family members including wife, daughters, sons and sisters and it is impossible for him to commit rape with the complainant or her sister. He further contends that mere oral allegation is levelled against the applicant without any corroborative evidence including medical evidence does not prove the case of prosecution.
Complainant Mst. Dai has filed no objection statement before this Court on 23-5-2012 and so also victim Mst. Mirzadi filed no objection statement on 18-2-2011 along with their affidavits, in which they stated that they have no objection if the applicant is acquitted under section 265-K, Cr.P.C.
Today, both, the complainant as well as victim Mst. Mirzadi is present in Court and affirmed the same contents and further state that they have no objection if the applicant is acquitted.
Learned A.P.-G. also does not oppose this application.
I have minutely considered the respective arguments of learned counsel for the applicant, learned A.P.G. and examined the record.
The F.I.R. is delayed by about nine (9) months, such excessive period has not been accounted for; during that period the complainant and victim both had never complained to any family member of the applicant or some one else though they were residing amongst the family members of the applicant. It is well-settled law that particularly in the case of rape, the offence cannot be proved without corroboration of medical evidence. In the present case, the Women Medical Officer, D.H.Q.H. Umerkot has given her opinion in the medical certificate that the action of rape is excluded. The trial Court has not appreciated the above facts and circumstances.
In view of above facts coupled with no objection of complainant and victim, I am of the considered view that applicant has succeeded to make out his case for allowing the instant application. Consequently, this application is allowed and the order dated 25-2-2010 passed by trial Court is set aside. The applicant is acquitted by quashing the proceedings of Sessions Case bearing No.73 of 2009, pending before the Court of Sessions Judge, Umerkot.
MWA/A-75/K Application allowed.
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