2022 P Cr. L J 1710
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
TAJ -UD-DIN and another ---Appellants
Versus
The STATE ---Respondent
Criminal Appeals Nos. 37 and 72 of 2021, decided on 30th September, 2021.
Penal Code (XLV of 1860) ---
----Ss. 364 -A & 377 ---Qanun -e-Shahadat (10 of 1984), Art. 39 ---Sodomy ---Appreciation of
evidence ---Medical evidence ---Offence ---Determination --Confession before police ---
Accused persons were alleged to have abducted complainant and committ ed sodomy with
him---Trial Court convicted both the accused persons for abducting complainant and
sentenced them to imprisonment for life ---Validity ---Medical evidence was a corroborative
piece of evidence coupled with statement of victim ---Evasive denial without any allegation
of false implication had concluded that offence of sodomy punishable under S. 377, P.P.C.
was established ---Prosecution's case carried two versions, one introduced by
complainant/victim and another brought on record through disclosur e of one convict ---
Confession before police was discarded as the same was not admissible in evidence ---Other
details or narrations mentioned/made in such disclosure could not be accepted also ---
Statement/any piece of evidence was to be accepted or rejected in toto and not otherwise ---
Version introduced by accused persons could not be trusted, as the same was not worthy of
credit ---Carnal intercourse was committed with complainant and the same was proved on
record ---High Court altered the charge framed for a n offence punishable under S. 364 -A,
P.P.C. to offence of sodomy captioned as unnatural offence punishable under S. 377, P.P.C. --
-High Court reduced sentence of imprisonment from life to ten years ---Appeal was
dismissed, in circumstances.
Naseebullah Tar een for Appellant (in Criminal Appeal No. 37 of 2021).
Ahsan Rafiq Rana for Appellant (in Criminal Appeal No. 72 of 2021).
Abdul Mateen, A.P.G. for the State (in both Appeals).
Date of hearing: 21st September, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKH AIL, J. ---The convicts/appellants Taj -
ud-Din and Syed Muhammad have called in question the judgment dated 28.12.2020
("impugned judgment"), passed by learned Sessions Judge, Pishin ("trial court"), whereby,
both of them were convicted under section 364 -A of the Pakistan Penal Code, 1860
("P.P.C.") and sentenced to suffer rigorous life imprisonment with benefit of section 382 -B
of the Criminal Procedure Code, 1898 (Cr.P.C.).
Since, both convicts/appellants have been convicted and sentenced through a single
judgment and common questions of law and facts are involved, therefore, we are proposed to
dispose of these appeals through this common judgment.
2. Brief facts of the case are that complainant Olas Khan lodged an FIR bearing No.
143/2019 on 28th December, 2019 at 2:40 p.m. at Police Station, Pishin with the averments
that on fateful day of incident he came from his village i.e. Killi Haikalzai to Pishin Bazar
for attending Tuition Centre, that when he was going back on foot and reached in front of
Qazi Hou sing Scheme, Pishin, a vehicle bearing registration No.AAM -627 having tainted
glasses came, the driver whereof namely Tajuddin inquired about his destination. The
complainant was offered a lift for Killi Haikalzai; that when they reached at levies Chowki
Haikalzai, the driver accelerated the vehicle towards Saranan; that on hue and cry of the
complainant, the accused pointed a pistol upon him. At some distance, the accused stopped
the vehicle and committed sodomy with him. Thereafter, the accused brought hi m back to
Pishin Bazar and on a call phone, called his other companion i.e. accused Syed Muhammad.
Both the accused persons again took the complainant to the same area, where the other
accused Syed Muhammad also committed sodomy with him. The accused Tajud din while
dropping the complainant at Pishin Bazar gave him his FC service card along with a Sim -
card, while accused Syed Muhammad gave him Rs.300/ -.
3. After registration of the case vide FIR (Ex.P/9 -A), investigation was conducted by SI
Muhammad Sadiq, w ho went to place of occurrence, prepared site inspection memo (Ex.P/9 -
B and Ex.P/9 -C). He took photographs (Mark -P/1 and Mark -P/2) of the place of occurrence.
He prepared the map sketch (Ex.P/9 -D) of the place of arrest of the accused persons,
recorded sta tements of the witnesses under section 161, Cr.P.C., sent parcels to Liquat
University Jamshoro, Sindh for FSL report. After completion of investigation, he shifted the
accused to judicial custody and handed over case file to SHO for preparing incomplete
challan (Ex.P/9 -E). On receipt of FSL report (Ex.P/9 -F, Ex.P/9 -G), two envelopes of TCS
(Ex.P/9 -H, Ex.P/9 -J), a letter (Ex.P/9 -K). He produced incomplete challan (Ex.P/9 -L) and
complete challan (Ex.P/9 -M).
4. After completion of investigation, challan was s ubmitted before the trial court. On
13th February, 2020 charge under sections 364 -A, 367 -A, 377/34, P.P.C. was framed against
the accused persons, to which they pleaded not guilty and claimed trial, therefore, the
prosecution was directed to produce its ev idence to substantiate the accusation against them.
5. During the trial, prosecution produced as many as nine witnesses. PW -1 Olas Khan,
who was complainant of the case, he produced his report as Ex.P/1 -A.
PW-2 Syed Baz Muhammad, a witness of recovery memo of Zong Sim and Rs.300/ -.
He produced the recovery memo as Ex.P/2 -A. He produced sealed parcel No.1 as
Art.P:/1, out of which sample seal produced as Art.P/2, three currency notes total of
Rs.300/ - Art.P/3 , Zong Sim Art.P/4. He produced sealed parcel No.4 as Art.P/5, out
of which shirt was produced as Art.P/6.
PW-3 Muhammad Azam, H.C was the witness of recovery memo of vehicle. He
produced the recovery memo as Ex.P/3 -A and produced the vehicle bearing No.A AM-
627 as Art.P/7.
PW-4 Saadullah SI, was a witness of recovery memo of recovered pistol. He produced
recovery memo as Ex.P/4 -A, a video recording through a recovery memo of USB as
Ex.P/8 -B, sealed parcel as Art.P/23, a sample seal produced as Art.P/24 an d USB as
Art.P/25.
PW-5 Ejaz Ahmed SI, was a witness of arrest of the convicts/appellants and he also
produced recovery memos Ex:P/5 -A regarding their mobile phones and service card.
PW-6 Dr. Muhammad Ashraf Medical Officer, produced the medical certific ate of
victim as Ex:P/6 -A.
PW-7 Imtiaz Ahmed SI, was a witness of semen stained trouser of the victim and of
the convict/appellant along with sample of anal swab and produced recovery memo as
Ex:P/7 -A.
PW-8 Bakhat Muhammad ASI, was a witness of disclosur e of convict Taj -ud-Din,
produced Ex:P/8 -A.
PW-9 Muhammad Sadiq, SI, conducted investigation of the case. He produced FIR
Ex.P/9 -A, sketches of the place of occurrence Ex.P/9 -B, Ex.P/9 -C, photographs of the
place of occurrence as Mark -P/1 to Mark -P/4, the sketch of the place of arrest of
accused persons as Ex.P/9 -D, pieces of trouser of victim and accused persons in
sealed parcels. He produced incomplete challan as Ex.P/9 -E, FSL reports as Ex.P/9 -F,
Ex.P/9 -G, two envelopes of TCS Ex.P/9 -H, Ex.P/9 -J, letter Ex.P/9 -K, supplementary
challan as Ex.P/9 -L, and challan as Ex.P/9 -M.
PW-9-A Muhammad Sadiq, SI, again appeared and produced FSL report of recovered
pistol along with supplementary challan, report as Ex.P./9 -O and supplementary
challan as Ex.P/9 -P.
6. The trial Court on closure of prosecution evidence, examined the appellant under
section 342, Cr.P.C., wherein they denied the allegations and professed their innocence. The
appellants neither recorded their statements on oath under section 340(2), Cr.P.C. n or
produced any evidence in their defense. The learned trial Court, on completion of the trial by
means of impugned judgment, convicted and sentenced the appellant as mentioned
hereinbefore. Hence this appeal.
7. Mr. Nasibullah Tareen, Advocate learned cou nsel appearing for the convict/appellant
Taj-ud-Din at the very outset referred a provision of section 364 -A, P.P.C. and inter alia
contended that kidnapping from lawful guardianship is defined under section 361, P.P.C.,
which stipulates "Whoever takes or entices any minor under fourteen years of age, if a male,
or under sixteen years of age if a female, or any person of unsound mind, out of the keeping
of the lawful guardian of such minor or person of unsound mind, without the consent of such
guardian, sai d to kidnap such minor or person from lawful guardianship". While, its
explanation provides that the words "lawful guardian include any person lawfully entrusted
with the care or custody of such minor or other person". In view of above referred provision
coupled with the statement of PW -1/complainant, he vehemently urged that if the
prosecution case is admitted in toto without any rebuttal, still the question of kidnapping
from a lawful guardianship does not arise, merely for the reason that according to th e
complainant's own statement, he was heading to his house from tuition Centre, when lift was
offered to him by the convict Taj -ud-Din. Thus, it has been proved on record that at the time
of alleged commission of crime, the victim was not in custody of law ful guardian, but was all
alone. He also referred definition of kidnapping, abduction and was, therefore, of the view
that section 364 -A, P.P.C. was not attracted in the appellants' case. He further added that the
learned trial court did not take any steps to ascertain the age of alleged abductee/victim and
in view of statement of the complainant, apparently, he was adult and grown enough to
understand the consequences of boarding in the vehicle with a stranger, that the conduct of
the victim clearly shows that neither they were stranger to each other nor any enticing or
force and violence was applied which altogether rule out the possibility of the any
kidnapping or abduction. He, while assailing the validity of impugned judgment of the trial
court on the s trength of certain contradictions and omissions, also added that the whole
prosecution's case hinges upon the solitary statement of the alleged victim/ complainant, who
in order to establish the alleged abduction or kidnapping made certain dishonest
improv ements in his court's statement, which are sufficient to conclude that he was neither
trustworthy witness nor deposed truthfully; that a broad day light occurrence was alleged to
have taken place in a thickly populated area, when none from the general publ ic attracted to
the commission of offence nor the complainant/victim raised any hue and cry. Thus, if any
offence was committed the complainant/victim was a consenting party, therefore, he was also
liable to be held responsible. He, therefore, urged for se tting aside the impugned judgment
followed by clean acquittal of the appellants.
Mr. Ahsan Rafiq Rana, Advocate by adopting the arguments advanced by the learned
counsel further added that dishonest improvement with regard to arrival of the father of the
alleged victim, soon after the occurrence and pointing a pistol upon him by the accused Taj -
ud-Din, when allegedly he came back to take the appellant Syed Muhammad. He also
referred the statements of the witnesses and while adopting the similar line conte nded that
Octroi Chowk (Chungi) is situated in front of Police Station, Pishin, whereas, levies line is
also situated in the same vicinity, but the complainant/victim did not raise any hue and cry,
when he was allegedly detained in the vehicle on gun point ; that according to the FIR, the
case was registered on a written application of the complainant/victim, which fact was also
confirmed in the statement of the Investigating Officer, but still the complainant before the
court deposed that he reported the oc currence through oral statement; that alleged trouser of
the victim was not produced during the trial nor medical examinations of the
appellant/convicts were conducted, when even their blood samples were not obtained at the
time of medical examination; tha t the whole prosecution case is based upon solitary
statement of the victim/complainant, for which no independent corroboration was available.
He also vehemently supported the arguments of learned counsel for the co -appellant with
regard to kidnapping and abduction and also seriously disputed the age of the alleged
victim/complainant. He also threw challenge on alleged disclosure of the co -appellant Taj -
ud-Din mainly on a strength that though a video of alleged disclosure was shown to have
been recorded, wh ich was also played in the court, but neither the said video recording was
provided to the defence nor the law permits the admissibility of any such
disclosure/confession made before the police officials. He also urged for setting aside the
impugned judgme nt by extending benefit of doubt followed by clean acquittal of the
appellants.
8. Learned APG strongly opposed the contention and inter alia contended that law by
now is well settled, that conviction can be recorded on basis of solitary statement of the
complainant, if an inculpatory evidence is available on record; that a positive medical
evidence, the statement of medical witness followed by a DNA report fully corroborated with
the fact that alleged offence was committed and abduction of victim/complaina nt was
proved. He, therefore, urged for dismissal of the appeals.
9. We have heard the learned counsel for the parties, learned APG and have gone
through the record of the case with their valuable assistance.
10. The perusal of record shows that initially the FIR was lodged under sections 377/34,
P.P.C. However, after submission of the challan, the appellants were charged for offences
punishable under sections 364 -A, 367 -A, 377, 34, P.P.C. During the trial an application for
alteration of charge was also su bmitted on behalf of under trial convicts, but the said
application was dismissed with the observation that charge can be altered at any stage and it
is prerogative of the trial court to render a final verdict in view of the fact, circumstances and
evidenc e brought on record. The impugned judgment shows that the convict/ appellants were
convicted under section 364 -A, P.P.C. by awarding them imprisonment for life.
11. It was the prosecution's case that the complainant/victim Olas Khan was heading to
his house from tuition Centre, when he was intercepted by the convict Taj -ud-Din, who
offered him a ride/lift after inquiring about his destination. The complainant alleged that
when they reached near Killi Hekalzai cross, the accused Tajuddin accelerated the vehicle
towards Saranan road in opposite direction, when the complainant started crying, the accused
aimed a pistol upon him with threat of murder, in case of any resist ance, then he was took to
an abandoned area and forcibly committed sodomy with him, when they were returning back,
the accused Taj -ud-Din called someone on mobile phone and asked him to come alone near
Octroi Chowk (Chungi). Thereafter, the co -appellant Sy ed Muhammad was boarded in the
vehicle and they again headed toward the same area and after short distance from the earlier
place of occurrence, the co -convict Syed Muhammad also committed sodomy with him,
during their journey while returning back to the P ishin Town, the convict Tajuddin showed
his FC Card, while co -convict Syed Muhammad gave him Rs.300/ -, a Zong mobile Sim was
also given to him for keeping contact in future, the co -convict Syed Muhammad alighted
from the vehicle near Octroi Chowk (Chungi), while the convict/appellant Tajuddin dropped
him near Shaukat Addah. The application submitted by the complainant for registration of
FIR was silent about other details, except reporting of occurrence to the police, but in his
court's statement, he made c ertain improvements and deposed that after alighting near
Shaukat Addah, he borrowed a phone call from a cart -owner and called his father, after
arrival of his father they went to police station and submitted a report. Similarly, he also
made a dishonest i mprovement, when stated that in the second round of occurrence, when the
co-convict Syed Muhammad joined them, the convict Tajuddin was aiming pistol upon him.
Therefore, due to fear of death and injury, he did not cry and raised no voice to attract
anyone else. This portion of the complainant's statement was based on dishonest
improvement in order to justify his mysterious silence. Though he denied the existence for
any levies post in between Pishin Bazar to the place of occurrence, but the other witnesses
who are police officials and the Investigating Officer admitted and confirmed the existence
of levies post, on a road heading toward the place of alleged occurrence, it was also admitted
when the complainant/victim stated that he used to go to tuition Cen tre by bus, but, on a
fateful day he was heading towards his home by foot. He also admitted that he was all alone
when lifted by the convict/appellant Tajuddin. This court's statement was also noted with
dishonest improvement with regard to torture applied by the convict Tajuddin and injuries
sustained by him, but besides certain dishonest improvements, his statement was not
supported by the medical evidence. Borrowing of mobile phone and calling his father
through the said mobile was also noted as an impro ved version of his earlier statement. He
however, admitted that police station City Pishin is situated near Octroi Chowk (Chungi). He
admitted that he recorded his oral statement for registration of FIR and the place of his first
meeting with the convict T ajuddin was in populated area. Thus, in view of statement of the
appellants/convict and before dilating upon the merits of the case, it is apt to reproduce the
sections 361, P.P.C. and 364 -A, P.P.C., which respectively stipulate as under: -
"361. Kidnappin g from lawful guardianship. Whoever takes or entices any minor
under fourteen years of age, if a male, or under sixteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful guardian of such minor or
person of unsound mi nd, without the consent of such guardian, said to kidnap such
minor or person from lawful guardianship.
364-A. Kidnapping or abducting a person under the age of ten. Whoever kidnaps or
abducts any person under the age [fourteen] in order that such person may be
murdered or subjected to grievous, hurt, or slavery, or to the lust of any person or may
be so disposed of as to be put danger of being murdered or subjected to grievous hurt,
or slavery, or to the lust of any person shall be punished with death or with
imprisonment for life or with rigorous imprisonment for a term which may extend to
fourteen years and shall not be less than seven years".
The above quoted provision defines the kidnapping of any minor under 14 years of
age if a male, or under sixteen years of age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor or person of unsound mind, without the
consent of such guardian, said to kidnap such minor or person from lawful guardianship.
12. The question of moot importance in the instant case was that whether the
complainant/victim, who at the time of alleged commission of offence was all alone and
decided to sit in the Car with his free consent, will constitute an offence of kidnapping or
abducti on from the lawful guardian or otherwise. The prosecution in addition to relying upon
version of the complainant also produced on record the alleged disclosure of the
convict/appellant Tajuddin along with its video recording. The investigating officer in h is
court's statement admitted that according to disclosure, neither any force nor any deceitful
tact was applied, but the complainant boarded in the vehicle with his free consent and will.
Thus, by no stretch of imagination, the alleged act constitutes an offence of kidnaping or
abduction.
13. It is worthwhile to observe here that kidnapping as defined in sections 360 and 361,
P.P.C. are defining provisions. Whereas mere abduction has been defined in section 362,
P.P.C., which by itself is not a distinct of fence, it is only an offence, where the abduction is
made in the circumstances stated under sections 364, 364 -A, 365, 365 -A, 366, 367 and 369,
P.P.C. The kidnapping is not a continued offence, it is completed as soon as the convict is
conveyed beyond the l imits of Pakistan or taken or enticed from lawful guardianship,
whereas abduction is continued offence. To elaborate the kidnapping and abduction, it is
worthwhile to observe here that 'The terms abduction and kidnapping are sometimes used
interchangeably. In common law, kidnapping consisted of the forcible abduction or stealing
or carrying away of a person from one's own country to another. Kidnapping is the taking
away of a person by force, threat, or deceit, with intent to cause him or her to be detained
against his or her will. Kidnapping may be done for ransom or for political or other purposes.
Abduction is the criminal taking away a person by persuasion, by fraud, or by open force or
violence. Although, abduction and kidnapping were considered separat e and independent
crimes, they are not always mutually exclusive. In fact, some state statutes have used the
terms "abduct" and "abduction" in defining the offense of kidnapping. However, both the
terms refer to the unlawful taking or detention of one pers on by another. Abduction is the
unlawful interference with a family relationship, such as the taking of a child from his/her
parent, irrespective of whether the person abducted consents or not. Kidnapping is the taking
or detention of a person against his or her will and without lawful authority".
Thus, in view of above discussions, we are of the opinion that in the instant case the
section 364 -A, P.P.C. was not attracted, then a question, which requires to be pondered is
that what offence would constitute under the circumstances.
14. Before rendering any observation in respect of this case, it is suffice to mention here
that a defence -plea taken by the convict/appellant during the trial, the trend of cross -
examination shows that two types of defence was in troduced by the accused/respondent.
Initially, the suggestion was put to the PW -1 that the case against the appellant Tajuddin was
registered due to his unpleasant relations with the victim's paternal uncle, while to the police
officials, it was suggested that a criminal case was registered against the brother of convict
Tajuddin by the SHO PS Saddar and therefore, he was dragged in the instant case to punish
him for an enmity with police official. The defence except adopting an evasive denial of the
occurr ence, did not dispute the allegation with full verge. But the convict also did not opt to
enter into their defence nor produced any defence witness to establish the defence plea
introduced during the trial. The convict Tajuddin only produced the statement of Muhammad
Sadiq SI of police station, City Pishin recorded before the Judicial Magistrate -IV, Pishin in
case titled "State v. Merajuddin" in case FIR No.11/2020 of the same police station.
After minute scrutiny of the defence version and going through t he statement
recorded under section 342, Cr.P.C., we are once again of the considered opinion that the
defence introduced by the appellants was neither satisfactory nor plausible to a prudent mind,
therefore, it was not believable that they were dragged in a false case on basis of purported
enmity with uncle of the victim or with any of the police officials. Thus, the defence plea
being frivolous and after thought was not worthy of credence and, therefore, was rightly
disbelieved by the learned trial court.
15. Now, while adverting to the merits of the case, an offence punishable under section
364-A, P.P.C. was not established according to the requirement of criminal justice system,
then question arises which offence was made out? To elaborate this aspect of the case, the
statement of PW -6 Dr. Muhammad Ashraf, Medical Officer, District Headquarter Hospital,
Pishin is relevant and, therefore, injuries noted by the said witness being relevant are
reproduced herein below: -
"INJURIES:
• Bruises on both buttocks.
• Tear around anus/canal.
• Tear on the cloth.
• Hair present on the anal canal/anus and semen.
• Swab taken from passive agent (anus/anal canal and cloth). Handed over to police
Pishin for lab/DNA analysis.
• Samples taken from active agents sen t for DNA analysis.
Foreignsic (sic) Lab feedback:
Conclusion: - The accused Tajuddin son of Mirza Khan Tareen and accused Syed
Muhammad son of Hussain Akbar Bor Muhammad Khan (item No.6 and Item No.2)
both are contributors of semen stains/sperm fractions identified on item 2.0 item 3.0
and item 4.0 (all cloths/pieces of clothes of victim Ulas Khan son of Muhammad
Azam Tareen. The accused Syed Muhammad son of Hussain Akbar Bor Muhammad
(item 7.0) is also the contributors of stains/sperm fractions identified item 1.0 (the
anal swab samples of victim Ulas Khan son of Muhammad Azam Tareen)."
16. The medical certificate further shows that the victim/complainant was identified,
brought and referred by the officials of Police Station, Pishin and he was examined on a
same day i.e. 28.12.2019 at 3:00 p.m. at the casualty department of the hospital. The medical
certificate shows that the anal swab, pieces of clothes of the victim's trouser (Shalwar) and
his blood sampling were obtained and handed over to the investiga ting officer, who
transmitted the said article to the FSL Jamshoro Sindh. Since, the convict/appellant were in
custody, therefore, on laboratories' demand, their blood samples were also obtained and
transmitted to the laboratory for DNA matching. Three pag es of report Ex.P/9 -F dated
20.01.2020 finally rendered the following result and conclusion which state as under:
"Results:
The 02 Male DNA profiles has been obtained from Semen Stains/Sperm fractions
identified on Item 2.0, Item 3.0 and Item 4.0 (all th e Clothes/pieces of clothes of
victim Owlas Khan son of Muhammad Azam Tareen) shares the required alleles with
the DNA profiles obtained from Item 6.0 and Item 7.0 (Blood sample of accused
Taju -ud-Din son of Mirza Khan Tareen and Blood sample of accused Sy ed
Muhammad son of Hussain Akbar Bor Muhammad Khel).
The male DNA profile obtained from Semen Stains/Sperm fractions identified on
Item 1.0 (The Anal swab sample of victim Owlas Khan son of Muhammad Azam
Tareen) also shares the required alleles with the D NA profile obtained from Item 7.0
(Blood sample of accused Taj -ud-Din son of Mirza Khan Tareen).
Conclusion:
The accused Taj -ud-Din son of Mirza Khan Tareen and accused Syed Muhammad son
of Hussain Akbar Bor Muhammad Khel (Item 6.0 and Item 7.0) both are the
contributors of Semen Stains/Sperm fractions identified on Item 2.0, Item 3.0 and
Item 4.0 (All the Clothes/Pieces of cloths of victim Owlas Khan son of Muhammad
Azam Tareen).
The accused Syed Muhammad son of Hussain Akbar Bar Muhammad Khel (Item 7.0 )
is also the contributors of Stains/Sperm fractions identified on Item 1.0 (The anal
swab samples of victim Owlas Khan s/o Muhammad Azam Tareen).
17. Thus, the above said corroborative piece of evidence coupled with statement of
victim/accused, the evasive denial without any allegation of "false implication" altogether
brings us to an irresistible conclusion that an offence of sodomy punishable under se ction
377, P.P.C. was fully established. Though, it has already been discussed hereinabove that the
prosecution's case carries two versions, one introduced by the complainant/victim and
another brought on record through disclosure of the convict/appellant Tajuddin. But, if the
confession before the police is discarded being not admissible in evidence, then the other
details or narrations mentioned/made therein shall also not be accepted. It is well settled
principle that the statement/any piece of evidence shall be accepted or rejected in toto and
not otherwise, therefore, version introduced by the convict/appellants cannot be trusted being
not worthy of credence and similarly the observation rendered by the learned trial court with
regard to conviction reco rded under section 364 -A was also not sustainable.
For the above stated reasons and keeping in view the facts and circumstances of the
case, since the carnal intercourse committed with the victim/complainant has been proved on
record, therefore, the char ge framed for an offence punishable under section 364 -A, P.P.C. is
altered to an offence of sodomy captioned as unnatural offence punishable under section 377,
P.P.C. Thus, appellants Taj -ud-Din son of Haji Mirza Khan and Syed Muhammad son of
Hassan Akbar are convicted under section 377, P.P.C. and sentenced to suffer ten years' RI
each with fine of Rs.10000/ - (rupees ten thousand) each which shall be payable to the
convicts/appellants. In case of default, the accused shall further suffer SI for one year, w hile
benefit of section 382 -B, Cr.P.C. shall remain intact.
With above modification, and after altering the charge, these appeals are otherwise
dismissed on merits.
MH/10/Bal. Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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