Akram S/O Munna Miyan vs The State (Govt.Of Nct Delhi)
2010 Latest Caselaw 1047 Del

*                  HIGH COURT OF DELHI : NEW DELHI

         Judgment reserved on: February 16, 2010
       Judgment pronounced on: February 23, 2010

+                        Crl. A. No. 581/1999

%       Akram s/o Munna Miyan               ... Appellant
                 Through: Mr. D.K. Bhatia, Advocate

                              versus

        The State
        (Govt.of NCT Delhi)                ... Respondent
                  Through: Mr. Amit Sharma, Additional
                            Public Prosecutor

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       No.
            not?

            Whether the judgment should
3.
            be reported in the Digest?


SUNIL GAUR, J.

1. On 18th April 1997, at about noon time, Appellant -

Akram with his co-accused had committed a criminal

house trespass by illegally entering into the house of

prosecutrix (PW-2) and had wrongfully confined her in her

house and had grievously hurt her and had also raped her

and for these offences, trial court vide impugned order of Crl. A. No. 581/1999 Page 1 30th September 1999, has convicted Appellant - Akram

and has sentenced him to rigorous imprisonment for ten

year with fine and to varying lesser terms for the allied

offences, in FIR No. 196/97 registered at Police Station

Shahdara, Delhi.

2. On the day of this incident, festival of Eid was being

celebrated. Prosecutrix (PW-2) is a married lady and on

this festive occasion, her children had gone out of the

house to distribute the sweets and she was alone in her

house at noon time, when Appellant - Akram with his co-

accused intruded into her house. Appellant - Akram

happens to be the friend of brother of prosecutrix (PW-2).

As per the narration of the prosecutrix (PW-2), she had

offered 'kheer' to Appellant - Akram and his co-accused

and after consuming it, Appellant - Akram had asked his

co-accused to bolt the door of the house from inside and

Appellant had caught hold of the prosecutrix (PW-2) and

then had raped her. During this incident, Appellant -

Akram is said to have assaulted the prosecutrix (PW-2)

with knife and had threatened to kill her and to rape her

daughter also, if she disclosed about this incident to

anyone. When, daughter (PW-6) of the prosecutrix (PW-2)

had come there, the accused persons had left, leaving the

Crl. A. No. 581/1999 Page 2 prosecutrix (PW-2) naked (below the waist) at the spot.

3. Aforesaid incident was reported to the police and

medical examination of the prosecutrix (PW-2) was got

done and on her statement, FIR of this case was

registered, which led to the arrest of the accused persons

in this case and they were also got medically examined. At

the instance of Appellant - Akram, one camera was

recovered from his house and from the negatives,

photographs were got developed. Investigation

proceedings stood concluded with the filing of charge

sheet, which led to the trial of the Appellant - Akram for

the offences under Section 324 and 376 of the Indian

Penal Code as well as for the offences under Sections

342/451/34 of Indian Penal Code.

4. As many as fifteen witnesses had deposed at the trial

of this case but the relevant evidence is of few witnesses,

which were referred to during the hearing of this appeal.

The relevant evidence is of prosecutrix (PW-2), her

daughter (PW-6), Investigating Officer (PW-15) and the

medical evidence, i.e., MLC (Ex.PW-3/A) of the prosecutrix

(PW-2) and the FSL Report Ex. PW-13/A and Ex.PW-13/B).

5. Before the trial court, the stand of the Appellant -

Crl. A. No. 581/1999 Page 3 Akram is of denial of the prosecution case but he had

chosen not to lead any evidence in his defence and the

specific plea taken by him deserves notice and is as

under:-

"Due to the mala fide intentions and ulterior motives of the prosecutrix and IO, this false case is made out. The prosecutrix was my friend's sister and always wanted to have sex with me, which I always denied. Then, she threatened me to implicate in a false case and subsequently, made this case against me.

The prosecutrix is a desperate type of woman, married with someone and living with the other person. She is nymphomaniac, always looking for innocent tender aged boys to have vigorous sex with them. She is a known bad character in the society."

6. The trial of this case stood closed with the passing of

the impugned judgment/order, convicting and sentencing

the Appellant - Akram as already stands noted above.

7. Submissions and counter-submissions advanced by

both the sides have been deliberated upon and the

evidence on record has been analyzed thread bare with

the assistance rendered by the learned counsel for the

parties.

8. The submissions advanced on behalf of the Appellant

Crl. A. No. 581/1999 Page 4

- Akram, narrows down the scope of consideration of this

appeal. According to the counsel for the Appellant, the

present incident is sought to be made out to be a case of

rape but in fact, it was a case of consent and the injuries

on the prosecutrix (PW-2) were self inflicted as face saving

because daughter (PW-6) of the prosecutrix (PW-2) had

arrived at the spot. Thus, impugned judgment is sought to

be set aside.

9. To the contrary is the submission of learned

Additional Public Prosecutor for the State, who points out

that the nature of injuries sustained by the prosecutrix

(PW-2) are grievous and it has not been suggested to the

doctor concerned that they could be self inflicted and in

fact, they are not. According to learned Additional Public

Prosecutor for the State, presence of the co-accused at

the spot, clearly rules out the plea of consent put forth by

the Appellant - Akram. Thus, it is said that this appeal is

bereft of merit and deserves dismissal.

10. The testimony of prosecutrix (PW-2) has to be

appreciated in the light of what Apex Court has said in Om

Prakash V State of Uttar Pradesh, AIR 2006 SC 2214, and

it is as follows :-

"The Indian women has tendency to conceal such Crl. A. No. 581/1999 Page 5 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"

11. A close reading of the deposition of the prosecutrix

(PW-2) does not in any manner show that there was any

time gap between the knocking of the door by Sahana

(PW-6) and its opening, giving an opportunity to the

prosecutrix (PW-2) to inflict injuries upon her to make out

the case of consensual sex as rape. The MLC (Ex.PW-3/A)

of the prosecutrix (PW-2) reveals that the nature of

injuries suffered by her was grievous one and with a sharp

weapon and these injuries do not appear to be self

suffered and it is so said because, Dr. R.A. Gautam (PW-3),

who had medically examined her, has ruled out injuries

sustained being self-suffered, by opining that self inflicted

injuries are not so deep, meaning thereby, the injuries

suffered by the prosecutrix (PW-2) were deep ones.

Moreover, this categoric opinion remains unchallenged by

the defence.

Crl. A. No. 581/1999 Page 6

12. When the evidence of the prosecutrix (PW-2) and of

her daughter (PW-6) are read as a whole, it leaves no

manner of doubt about the veracity of the prosecution

case. It militates against human probability that a

consensual sex would take place in the presence of a

stranger, i.e., the co-accused, whose presence at the spot

is not disputed by him in the connected appeal. In any

case, presence of grievous injuries on the person of the

prosecutrix (PW-2) completely rules out the plea of

consent put forward by the Appellant - Akram in this case.

The photographs Ex. P-1 to Ex. P-3 are of corroborative

nature. It is really inconsequential that the shirt worn by

the person in photograph Ex. P-2 is different than the shirt

worn by the person in photograph Ex. P-1. When the

testimony of the prosecutrix (PW-2) is found to be

consistent and reliable, then no corroboration is needed.

In any case, daughter (PW-6) of the prosecutrix (PW-2)

corroborates her version.

13. The cumulative effect of the evidence on record

persuade this Court to sustain the conviction of the

Appellant - Akram for the offences in question. The nature

of offence committed by the Appellant - Akram dissuades

this Court to interfere with the substantive sentence

Crl. A. No. 581/1999 Page 7 awarded to the Appellant - Akram. Resultantly, impugned

judgment and order of the trial court is upheld and this

appeal is dismissed. Bail bonds of Appellant - Akram are

forfeited. Trial court to ensure that the Appellant - Akram

is put behind bars to undergo the sentence, as awarded

to him.

14. This appeal as well as pending application, if any, is

accordingly disposed of.

Sunil Gaur, J.

February 23, 2010
pkb




Crl. A. No. 581/1999                                     Page 8