Delhi High Court
Mohd. Nasir @ Gulfam vs State on 27 February, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : February 09, 2009
Judgment delivered on : February 27, 2009
+ (1) Crl. Appeal No. 847/2006
% Mohd. Nasir @ Gulfam ... Appellant
Through: Mr. Rashid Hashmi, Advocate.
versus
State ... Respondent
Through: Mr. Amit Sharma, Additional Public
Prosecutor for State.
+ (2) Crl. A. No. 1004/2006
&
Crl. M. B. No. 729/2008
% Javed ... Appellant
Through: Mr. S.A. Rajput and Mr. R.K. Uppal,
Advocates.
versus
State (NCT of Delhi) ... Respondent
Through: Mr. Amit Sharma, Additional Public
Prosecutor for State.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. The two Appellants, Mohd. Nasir @ Gulfam s/o Mohd.
Rafiq and Zaved s/o Akhlakh in the above titled two appeals
assail their conviction for the offences punishable under
Section 376(2g)/506/34 of Indian Penal Code, recorded by the
learned Additional Sessions Judge, Delhi in the impugned
judgment of 13th July, 2006, and vide order on sentence of 17th
July, 2006, both Appellants have been sentenced to undergo
rigorous imprisonment for a period of ten years each and to
Crl. Appeal Nos. 847 & 1004 of 2006 Page 1
pay fine of Rs.2,000/- each and in default of payment of fine, to
further undergo rigorous imprisonment for six months each.
2. Since these two appeals arise out of common impugned
judgment, therefore, they have been heard together and are
being decided by this common judgment.
3. The prosecution version, in brief, as appearing from the
record of this case, is that on receipt of DD No.32A on
18.7.2005, SI Abha alongwith SI Ramnath and Constable Satish
reached in H.R. Hospital and collected the MLC of one Yashmin
w/o Rafique (hereinafter referred to as prosecutrix) and
recorded her statement, Ex.PW-8/A, in which she had alleged
that on 18.7.2005 at about 3 a.m., when she got up for
spreading the wet clothes of her daughter, for drying, as she
had urinated, her Jeth - Javed suddenly caught hold her from
behind and her brother-in-law/Behnoi put the cloth in her
mouth and both of them took her to latrine and thereafter,
they both committed rape upon her turn by turn. They told her
that if she will make any noise, they will kill her husband by
administering poison. On the basis of her statement, the
present case was registered and, thereafter, investigation was
conducted and appellants/accused were arrested. After
completion of investigation, appellants/accused were charge-
sheeted for the offence under Sections 328/506/376(2g)/34 of
Indian Penal Code.
4. On 20th October, 2005, trial in this case commenced
Crl. Appeal Nos. 847 & 1004 of 2006 Page 2
because accused/appellants did not plead guilty to the charges
framed against them under the aforesaid provisions of law.
5. During trial, the prosecution had got examined fifteen
witnesses in all. The crucial witnesses are the prosecutrix (PW-
8), her husband (PW-10) and her sister (PW-9). Dr. Sweta
Mishra (PW-5) has proved the MLC Ex. PW-2/A of the
prosecutrix (PW-8) and the MLCs of the appellants are proved
on record as EX. PW-14/A and EX. PW-14/C. ASI Abha is the
Investigating Officer of this case.
6. These two appellants in their statements under Section
313 Cr.P.C before the trial court had pleaded their innocence
and stated that they have been falsely implicated in this case.
They got examined two witnesses in their defence, i.e.,
G.Nawab Ahmed (DW-1) and Mohd. Aklaq (DW-2). Infact,
Nawab Ahmed (DW-1) did not deposed anything about this
case and deposed about some old quarrel and Mohd. Akhlaq
(DW-2) is the father of accused appellant/accused -Javed.
7. After the trial, these two appellants stood convicted and
sentenced for the offence punishable under Section
376(2g)/506/34 of the Indian Penal, as indicated above.
8. Submissions have been advanced by both the sides, who
have assisted this court, in perusing the evidence on record.
9. The testimony of the prosecutrix (PW-8) has been
assailed by the learned Counsels for both the appellants by
Crl. Appeal Nos. 847 & 1004 of 2006 Page 3
contending that they have been falsely implicated in this case
due to property dispute with the husband of the prosecutrix
and also due to the ill-will and bad relations of the prosecutrix
with the family members. The effort on behalf of the appellants
was to highlight from the evidence of the prosecutrix (PW-8)
that the incident, as narrated by her, was not at all possible
because the latrine where she was allegedly raped by the
appellants, was just 36"X32" and the prosecutrix has asserted
in her evidence that she was raped by the appellants, one by
one, while she remained in the latrine in standing position.
10. According to learned counsels for these two appellants, it
is just not possible to rape the prosecutrix, as alleged by her. It
is also pointed out that there was no injury on the person of
the prosecutrix, although she has alleged that after she was
raped, she had fallen down in the latrine. It is further pointed
out by learned Counsels for the appellants that the cloth, which
was allegedly put in the mouth of the prosecutrix, was not
produced and the prosecutrix in her evidence has stated that
this incident lasted for about half an hour and at the time of
this incident, her hands were down, which indicated that she
had not resisted the alleged forcible sexual intercourse with
her. Attention of this court has been drawn to the cross
examination of the prosecutrix by the defence to show that she
did not raise any objection at the time of commission of the
offence by appellant/accused-Javed.
11. Attention of this court has been also drawn to the cross
Crl. Appeal Nos. 847 & 1004 of 2006 Page 4
examination of the prosecutrix by the defence to show that she
has admitted in her evidence that sometimes, quarrel took
place, between her husband and her jeth and jethani and that
she has also admitted that she had gone to her parental house
due to quarrel between her and her husband and that there
was lot of quarrel on several occasions on the property.
12. The medical evidence indicates the presence of human
semen on the salwar of the prosecutrix and on the payjama of
appellant/accused-Javed, as per FSL Report EX. PW-15/B & C
may not be conclusive evidence by itself. But it is certainly
incriminates the appellants/accused as prosecutrix (PLW-8) has
categorically stated in her evidence in clear terms that she did
not have sexual intercourse with her husband of late i.e. prior
to this incident. In the case of Prithi Chand V. State of Himachal
Pradesh AIR 1989 SC 702 it has been said that mere absence
of spermatozoa cannot cast a doubt on the correctness of the
prosecution case.
13. After having carefully scrutinized the evidence of the
prosecutrix (PW-8), of her husband (PW-10) and of her sister
(PW-9), I find that the aforesaid contentions raised on behalf
of the appellant to assail the testimony of the prosecutrix (PW-
8) are not of much consequence, for the reason that the
defence had given suggestion to the prosecutrix (PW-8), which
reads as under:-
" It is further wrong to suggest that even on
the date of the incident, accused- Javed
committed sexual intercourse with my
Crl. Appeal Nos. 847 & 1004 of 2006 Page 5
consent along with accused Mohd. Nasir @
Gulfam."
14. The suggestion given to Mohd. Rafique (PW-10), husband
of the prosecutrix by the defence was that appellant/accused-
Javed was having illicit relations with the prosecutrix (PW-8),
i.e. the wife of this witness and it has come in the evidence of
this witness (PW-10) that appellant/ accused- Javed is his step-
brother.
15. Although the suggestion given to the prosecutrix (PW-8)
by the defence was of false implication on account of property
dispute with her husband (PW-10) but no such suggestion has
been given to the husband of the prosecutrix (PW-8). All that
has been suggested to the husband of the prosecutrix is that
due to previous enmity, he has falsely implicated the
appellants, in connivance with his wife. Nature of previous
enmity has not been brought out by the defence.
16. The happening of this incident, as narrated above, stands
conclusively proved on record, not only from the evidence of
the prosecutrix (PW-8) but also from the evidence of Smt.
Naima (PW-9), sister of the prosecutrix, to whom, the
prosecutrix had told about this incident in the first instance.
The testimony of the prosecutrix (PW-8) receives sufficient
corroboration from the evidence of her husband (PW-10).
17. In case of Om Prakash V State of Uttar Pradesh, AIR
2006 SC 2214, the pertinent observations made by the Apex
Court are as follows :-
Crl. Appeal Nos. 847 & 1004 of 2006 Page 6
"The Indian women has tendency to
conceal such offence (of rape) because it
involves her prestige as well as prestige of
her family. Only in few cases, the victim
girl or the family members has courage to
go before the police station and lodge a
case. In the instant case the suggestion
given on behalf of the defence that the
victim has falsely implicated the accused
does not appeal to reasoning. There was
no apparent reason for a married woman
to falsely implicate the accused after
staking her own prestige and honour".
18. In the instant case, it is beyond comprehension that a
married lady, i.e. the prosecutrix (PW-8) would be a consenting
party to the sexual intercourse with the two appellants who are
her brothers-in-law and that too, not once but twice, on the
day of the incident. The nature of the dispute regarding the
property has not been brought out in the cross examination by
the defence, therefore, appellants can have no advantage out
of it.
19. Generally speaking, the evidence of the prosecutrix
ought to be relied upon, if, it inspires confidence and it is not
required to be corroborated. In the present case, I have found
the evidence of the prosecutrix (PW-8) to be worthy of utmost
reliance and I find that the plea of consent raised by the
appellants is not at all plausible and their false implication by
the prosecutrix (PW-8) is ruled out.
20. When the prosecutrix (PW-8) asserts that she was raped
by appellant- Mohd. Nasir @ Gulfam also and not once, but
twice, there is no reason to disbelieve her. During the course of
the arguments, much emphasis was laid on the fact that it is
Crl. Appeal Nos. 847 & 1004 of 2006 Page 7
not at all possible to rape a woman in a standing position. This
contention stands repelled by the fact that appellants
themselves have given a suggestion to the prosecutrix (PW-8)
that she was a consenting party to the sexual intercourse with
them. Furthermore, recently in Crl. Appeal No. 224 of 2009,
titled as Arjun Singh v. State of Himachal Pradesh, decided on
6th February, 2009, by the Apex Court, it has been reiterated
that even the slightest degree of penetration is sufficient to
prove sexual intercourse. By the very nature of offence, it is an
obnoxious act of the highest order.
21. It is more so in the instant case as the present case is of
a gang rape by the brothers-in-law of the prosecutrix (PW-8). I
am of the considered view that the conviction of these two
appellants for the offence of gang rape by the trial court is
very well justified from the evidence on record. The
substantive sentence imposed upon the appellants is the
minimum, as provided under the law.
22. There is no scope for any interference with the impugned
judgment/ order on merits as well as on the quantum of
sentence. These two appeals are bereft of merit and are
hereby, dismissed.
23. These two appeals and pending application, stands
accordingly disposed of.
Sunil Gaur, J.
February 27, 2009
Pkb/rs
Crl. Appeal Nos. 847 & 1004 of 2006 Page 8
Crl. Appeal Nos. 847 & 1004 of 2006 Page 9
