Madhya Pradesh High Court
Ashraf vs The State Of M.P. on 13 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:29934
1 CRA-334-1999
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 334 of 1999
ASHRAF
Versus
THE STATE OF M.P.
Appearance:
Shri Y.Rathore / - Advocate for the appellant.
Shri Rahul Solanki G.A appearing on behalf of Advocate General.
Heard On:06.08.2025
Delivered On:13.10.2025
JUDGEMENT
1. This criminal appeal under Section 374 of Cr.P.C., 1973 is preferred
being aggrieved by judgment dated 30.01.1999 in S.C. No.198/1998 by 13
Additional Sessions Judge, Indore whereby the appellant/accused has been
convicted under Section 376 read with Section 511 of IPC and has been sentenced
for 5 years R.I. within fine of Rs.1000/- with default stipulation of 03 months R.I.
2. Facts in brief are that there was a marriage celebration at Kabutarkhana,
Indore in neighborhood of child/victim (PW-1). The victim and her mother (PW-2)
were also present to participate in the marriage ceremony organized in the
intervening night of 7 and 08/02/1998. During the marriage function, the victim
got missed and resident of Kabutarkhana, Mustak Ali (PW-5) rushed towards the
place from where the noise of crying and weeping was coming. Modh. Siddiqui
(PW-4) and Mohd. Nasir (PW-6) have also followed Mustak Ali. At about
12:30:AM in the intervening night, they found that a sound is coming from the
Gumti situated near wooden tall of Mohd. Nasir and Jafar and the gate of the said
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2 CRA-334-1999
Gumti was partially closed and the appellant/accused was lying on the victim, the
appellant was undressed and the child was also without cloths, the appellant was
indulge in sexual act, the child/victim was crying due to pain. The
appellant/accused tried to free from the spot and he was caught by them, they took
the appellant at Police Station Pandhrinath, Indore immediately alongwith the
victim/child. At 00:45AM in the morning of 08.2.1998, the report Ex.P/4 was
lodged by Mustak Ali (PW-5).
3. The appellant/accused was taken into custody vide Ex.P/6. Both were
medically examined. Materials were collected for examination. Spot map was
prepared. Statements of the witnesses were recorded. During investigation, birth
certificate of the victim was taken on record and after the investigation, final report
was submitted under Section 376(2)(f) of IPC.
4. Charges were framed under Section 376(2)(f) of IPC. The
appellant/accused abjured guilt and claimed for trial.
5. To bring home the guilt, the prosecution has examined the Victim PW-1,
her mother (PW-2), father of the victim (PW-3), Mustak Ali who lodged the FIR
(PW-5), Mohd. Siddiqui (PW-4), Mohd. Nasir (PW-6) who alongwith Mustak Ali
have apprehended the appellant/accused from the place of incident, Dr. Kailash
Surgeon, MY Hospital, Indore (PW-7), Investigating Officer Bhartendu Salunke
PW-8, Medical Officer Dr. Jagdish Chandra Gupta (PW-9), Sub-Inspector Shivpal
Singh Chouhan PW-10 and Dr. Pratibha Lal PW-11.
6. In examination under Section 311 of Cr.P.C.,1973, all the facts and
circumstances against the accused/appellant either denied or ignorance was
expressed pleading innocence. His defense is that the marriage of PW-1/victim's
sister was fixed with him, but thereafter, she was married with some other person.
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He went to see the marriage function and was robbed in this case falsely. The
appellant/accused examined his mother Haseena as (DW-1) and neighbor Seria as
DW-2.
7. Appreciating the evidence, the learned trial Court found proved that the
victim/PW-1 was aged about 06 years and also found proved that the
appellant/accused was present in the marriage ceremony and he caught hold the
victim and undressed her, he also removed his cloths, laid on the child/victim,
tried to enter his genital part in the vagina of victim/PW-1 and the act of the
appellant falls within the definition of "attempt to rape" and acquitted from the
charges under Section 376(2)(f) of IPC and convicting the accused/appellant as
mentioned in para no.1, above.
8. Challenging the conviction as well as sentence, this appeal has been
preferred.
9. No one represented the appellant/accused. Vide order dated 04.09.2024,
Amicus Currie has been appointed by this Court from the list of Penal Advocates
to represent the appellant. With the assistance of Amicus Currie, the
appellant/accused was heard finally.
10. Date of birth of the victim/PW-1 has been found proved on the strength
of birth certificate annexure Ex.P/2 registered on 04.10.1991 and issued on
16.10.1991 by Municipal Corporation, Indore and the same has been proved from
the testimony of father of victim PW-3. There is no challenge to the genuineness
of the birth certificate Ex.P/2. Accordingly, the age of the victim/PW-1 on the date
of incident i.e. in the intervening night of 7 and 8.02.1998, is proved as six years.
11. The victim/child was examined on 29.06.1999 as PW-1. Before
recording her statements, the competency of the child/victim was tested by voir
dire test and the learned trial Court has recorded the finding that the child/victim
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4 CRA-334-1999
was competent to understand the question put to her and give the rational answers
of the questions and thereafter, recorded her evidence without administering the
oath.
12. The questions put to the victim/child through voir dire test and the
answers discloses that the child was studying in first standard at that time and she
answered all the three questions. Thereafter, the narration of the incident taken as a
whole disclose that the finding of learned trial Court that the witness is competent
to depose is proper.
13. The victim/PW-1 has described the incident and pointed out that the
appellant/accused is the person who committed the act with her and she has
described the act that the appellant put his genital into her vagina and she was put
under pain, blood was also oozed.
14. Mustak Ali (PW-5), Mohd. Siddiqui (PW-4) and Modh. Nasir (PW-6)
did not support the case of the prosecution and they were declared hostile. Mustak
PW-5 admits that he put his signatures on the FIR Ex.P/4. Dr. Pratibha Lal PW-11
examined the victim/PW-1 on 08.02.1998 at MY Hospital, Indore and collected
the under garments of the victim, prepared the slide of vaginal swab and handed it
over to the concerned police constable for forensic examination. Ex.P/15, was
admitted under Section 294 of Cr.P.C., 1973 on 12.01.1999 and discloses that
blood was present on the under garments of the victim sent for examination as also
the slide prepared of the victim. Blood was also present on the undergarments of
the appellant/accused collected by medical officer Dr. Jagdish Chandra Gupta PW-
9 on 18.02.1998. Sperm was also present on the undergarments of the victim/PW-
1 as well as on the undergarments of the accused/appellant. Mother of the
victim/PW-2 has stated the circumstances surrounding the disappearance of the
victim on the date of incident and thereafter, the recovery and the complaint made
NEUTRAL CITATION NO. 2025:MPHC-IND:29934
5 CRA-334-1999
by the victim/PW-1.
15. The FSL report Ex.P/5 and the testimony of PW-2 provide assurance to
the testimony of PW-1 and the learned trial Court has rightly held that PW-1 was
subjected to "attempt to rape." The defence advanced by the appellant/accused
through DW-1 and DW-2 does not affect the credibility of PW-1/victim. On the
contrary, the appellant/accused participated in the marriage function in which the
victim/PW-1 was also participating and the incident was committed. The findings
of learned trial Court regarding nature of offence does not required interference of
this Court. Accordingly the conviction of the appellant under Section 376 read
with Section 511 of IPC is hereby affirmed.
16. Considering the age of the victim/PW-1 and the fact that the
appellant/accused was aged about 25 years at the time of incident, does not entitle
him for any leniency. Hence, the sentence also does not call for any interference
by this Court. Consequently, the appeal is devoid of merits and is hereby
dismissed.
17. Record discloses that the sentence of the appellant was suspended vide
order dated 13.12.1999 and thereafter, the appellant remain absent and it was
intimated that the appellant is in jail in connection with another crime
No.201/2000 in District Jail, Indore hence, vide order dated 14.02.2003, the
Superintendent of Jail, District Jail, Indore was directed not to release the
appellant without permission of this Court.
18. Hence, the record be remitted back to the leaned trial Court concerned.
The learned trial Court is directed to call a custodial report from the concerned jail
regarding the custody period of the appellant, and if the custody is not completed
by him, his presence be secure and he be sent into custody to undergo the
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6 CRA-334-1999
remaining jail sentence.
19. It is made clear that, if as per the custodial report, it is found that the
appellant has completed the entire custody period in the present case then he be set
at liberty forthwith if not required in jail in any other case.
20. A copy of this judgment be sent to the learned trial Court for necessary
information and compliance.
Certified copy as per rules.
(GAJENDRA SINGH)
JUDGE
amit
