Law: Penal Code (XLV of 1860)

Section: 376

Penal Code (XLV of 1860), S. 376-Rape-No independent eye-witness-Only evidence of prosecutrix or of persons to whom it was reported-Expert evidence as to person or garments of pro secutrix sine qua non-Court having no objective test to guage truth of story-Charge of rape not sustainable.   Muhammad Abdul Khaleque's case P L D 1960 S C (Pak.) 325 rel.  JUDGMENT   BAQUER, J.-This appeal is directed against the judgment and order of M. S. K. Kalimuddin, Assistant Sessions Judge, Bogra dated 7-5-60 convicting the appellant Mofizuddin Mondal under sections 366 and 376 of the Pakistan Penal Code and sentencing him to rigorous imprisonment for three years for the offence under section 366 of the Pakistan Penal Code and to rigorous imprisonment for four and half years for the offence under section 376 of the Pakistan Penal Code. The sentences in both were ordered to run concurrently.   The prosecution story is that in the village Jamura under Khetlal Police Station inthe district of Bogra there lived a poor family of one Safiruddin consisting of himself, his young wife Ayna Bibi aged 19, his mother and brother. It is alleged that at dusk on Sunday (21-11-59) the exact time not given, the appellant carried away by force the prosecutrix. namely, Ayna Bibi, the young wife of Safiruddin when she had resorted to a ditch to the south of their homestead for easing herself. The story is that thereafter appellant detained and raped the prosecutrix for two consecutive nights in his south facing hut. The appellant is a man of 35 years of age having wife of his own and two little children already by her to his credit and his but is only 50 yards away from that of the prosecutrix. It is alleged that at the relevant time the wife and children of the appellant were away. Safiruddin husband of the prosecutrix was also away from home at the time the appellant seized upon the prosecutrix by wrapping a gamcha around her neck so as to still her voice. It is alleged that the actual wrapping having been perpetrated at the point of dagger she had to bear in silence.   The aggrieved husband failing to trace her out on his return home late in the sameevening took…