Razik Iman S/O Ikramul Haq vs The State (Nct Of Delhi)
2010 Latest Caselaw 528 Del

*                      HIGH COURT OF DELHI : NEW DELHI

         Judgment reserved on: January 27, 2010
       Judgment pronounced on: February 01, 2010

+                        Crl. A. No. 600/2007

%        Razik Iman
         S/o Ikramul Haq                     ... Appellant
                   Through: Ms. Ritu Gauba, Delhi High Court
                            Legal Service Counsel

                                  versus

         The State
         (NCT of Delhi)                    ...   Respondent
                   Through: Mr. Amit Sharma, Additional
                            Public Prosecutor for the 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. In this appeal, the conviction of the Appellant for the

offence of rape and the sentence of rigorous imprisonment

for ten years with fine of Rs.5,000/- is assailed, by

asserting that due to a landlord-tenant dispute, Appellant

has been falsely implicated in this case.

Crl. A. No. 600/2007 Page 1

2. The incident is of night intervening 22nd and 23rd May

2005. The prosecutrix (PW-5) is a married lady who was

aged 25 years then, whose version is that she is an

illiterate lady and she was present at her house with her

infant child and her husband had gone for night duty and

at about midnight on the day of this incident,

appellant/accused, who was residing in the

neighbourhood, came inside her house and had switched

on the light and had bolted the door of the room from

inside and had grabbed her. According to the prosecutrix

(PW-5), she had resisted and in the scuffle, her blouse was

torn and the Appellant had succeeded in having forcible

sexual intercourse with her and thereafter, he had left and

while leaving, he had extended threat to her, not to

disclose about this incident to anyone. It is the version of

the prosecutrix (PW-5) that after this incident, she was

crying in the whole night and when her husband returned

back from duty, she disclosed about this incident to him

and also to an old lady in the neighbourhood and

thereafter this incident was reported to the police, which

led to registration of FIR No. 793/05 under Section 376 of

Indian Penal Code registered at Police Station Sultanpuri,

Crl. A. No. 600/2007 Page 2 Delhi.

3. In the course of investigation of this case, version of

prosecutrix (PW-5) was recorded and she was got

medically examined and appellant/accused was arrested

in this case and his medical examination was also got

conducted. The exhibits of this case were sent to FSL for

analysis. Upon completion of investigation of this case,

charge sheet for the offence of rape was filed against the

appellant/accused before the trial court. Since Appellant

had chosen to contest the charge of rape framed against

him, trial ensued. Apart from the evidence of the

prosecutrix (PW-5), there is medical evidence and

evidence of the landlord (PW-8) and the Investigating

Officer (PW-11) on record. At trial, Appellant was given an

opportunity to rebut the prosecution case and he in his

statement under Section 313 of Code of Criminal

Procedure, recorded by the trial court, had repelled the

prosecution version and had stated that the prosecutrix

(PW-5) and her husband has not paid the rent for the last

ten months and he was authorized by the landlord to

collect the rent from the tenants and when he had asked

Crl. A. No. 600/2007 Page 3 the prosecutrix (PW-5) and her husband to pay the rent,

then he was falsely implicated in this case. Despite

opportunity given by the trial court, Appellant had not led

any evidence.

4. Trial of this case culminated in the conviction of the

Appellant for the offence of rape, which is impugned in

this appeal.

5. The impugned judgment contains the factual

narration of this case and the same is not required to be

reproduced herein, as the fate of this appeal mainly

revolves around the testimony of the prosecutrix (PW-5),

which has been extensively referred to, during the hearing

of this appeal.

6. The submissions advanced by learned counsel for the

Appellant primarily centers around the veracity of the

version of the prosecutrix (PW-5). According to Appellant's

counsel, prosecutrix (PW-5) had not bolted the door of her

room from inside at night, which adversely reflects upon

the prosecution case. Furthermore, it is contended that

the prosecutrix (PW-5) claims that she had received an

injury on her back but she stands falsified by her MLC as Crl. A. No. 600/2007 Page 4 no injury on her back was found. Counsel for the Appellant

wondered as to why the prosecutrix (PW-5) has not raised

any alarm when she was being allegedly raped.

7. The foremost submission advanced is that the

medical examination contradicts the prosecution version

as the semen stains found on the underwear are of 'A'

Group, whereas the semen on the petticoat of the

prosecutrix (PW-5) was of 'O' Group. According to the

Appellant's counsel, aforesaid material contradiction in the

prosecution case gives immense strength to the version of

the appellant/accused of being falsely implicated in this

case to avoid payment of rent to the Appellant. Last but

not the least, much emphasis was laid by learned counsel

for the Appellant on the fact that the FSL report clearly

rules out the commission of the offence of rape as the

vaginal swab of the prosecutrix (PW-5) had tested

negative for semen. Thus, a fervent appeal was made by

Appellant's counsel for extending benefit of doubt to the

appellant/accused in view of the aforesaid so-called

infirmities in the prosecution version.

Crl. A. No. 600/2007 Page 5

8. The stand of the Respondent-State in this appeal, is

not the usual one but is quite effective as Mr. Amit

Sharma, Additional Public Prosecutor for the State points

out that the prosecutrix (PW-5) had legitimately not bolted

the door of her room from inside because her husband

was to arrive at night after finishing his duty. It is also

pointed out that prosecutrix (PW-5) had not raised any

alarm at the time of incident because she was threatened

by the appellant/accused. It is pertinently pointed out that

the torn blouse of the prosecutrix (PW-5) is a sufficient

indication of the resistance put up by the prosecutrix (PW-

5) to the forcible sexual intercourse committed by the

appellant/accused upon her. As regards there being no

injury on the back of the prosecutrix (PW-5), it has been

rightly asserted by learned Additional Public Prosecutor for

the State that there is no worthwhile cross-examination of

the prosecutrix (PW-5) on this aspect as it is not necessary

that while the prosecutrix (PW-5) was being laid on the

floor, by the appellant/accused, she would have sustained

a visible injury.

Crl. A. No. 600/2007 Page 6

9. The controversy regarding the group of semen stains

on the underwear and petticoat being different, stands

cleared by learned Additional Public Prosecutor for the

State by drawing attention of this court to the testimony of

the Investigating Officer (PW-11), which indicates that the

underwear, which was seized, was not of the prosecutrix

(PW-5) but was of the accused. In any case, it has been

rightly contended by learned Additional Public Prosecutor

for the State that no benefit accrues on this account to the

appellant/accused as there is no cross-examination of the

prosecutrix (PW-5) on this aspect. Learned Additional

Public Prosecutor for the State closed his submissions by

reiterating the reasoning of the trial Judge, ruling out false

implication in a case like the present one, by a married

lady, on account of non-payment of rent and it is, thus,

asserted that impugned judgment does not suffer from

any infirmity or illegality.

10. The version of the prosecutrix is of prime importance

and it needs no corroboration, if it is found to be

trustworthy. Conviction, for the offence of rape, can be

recorded solely on the basis of trustworthy testimony of

Crl. A. No. 600/2007 Page 7 the prosecutrix and no corroboration is necessary. This is

the position of law on this subject as reinforced by the

Apex Court in State of Madhya Pradesh vs. Babu Lal,

(2008) 1 SCC 234. The pertinent observation made are

as follows:-

"Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisos."

11. Upon in depth analysis of the entire evidence on

record, I am of the considered view that the version of the

prosecutrix (PW-5) cannot be doubted merely because, Crl. A. No. 600/2007 Page 8 she keeps the door of her room open to enable her

husband to return back after duty at night. It is neither the

case of the Appellant nor it can be made out from the

evidence of the prosecutrix (PW-5) that she was a

consenting party to the sexual intercourse. I find

immense substance in the contention of the learned

Additional Public Prosecutor for the State regarding

prosecutrix (PW-5) being not cross-examined about the

nature of injury, she had suffered in this incident.

12. In cases like the present one, it is not always

necessary that the injury suffered would be visible one. It

has to be kept in mind that it emerges from the deposition

of the prosecutrix (PW-5) that she was under threat from

the appellant/accused but still, she had resisted and the

clear indication of this, is that her blouse was torn during

this incident. The testimony of the prosecutrix (PW-5)

throws light on the aspect of prosecutrix not raising alarm

while appellant/accused had proceeded to forcibly

sexually assault her and the reason put forth by her for

not raising the alarm is that her mouth was pressed by the

appellant/accused. The version of the prosecutrix (PW-5)

Crl. A. No. 600/2007 Page 9 cannot be doubted on the premise that her vaginal swab

had tested negative for semen. It is so said because Apex

Court has recently in Arjun Singh vs. State of H.P., (2009)

4 SCC 18, has reiterated that to constitute an offence of

rape, even slight penetration is sufficient and emission of

semen is unnecessary.

13. Since the semen stain on the petticoat of the

prosecutrix (PW-5) was of different group than that of the

appellant/accused, the inference sought to be drawn by

Appellant's counsel of prosecutrix (PW-5) being raped by

someone else is too far-fetched, for the reason that the

prosecutrix (PW-5) is a married lady and in all probability,

the semen stain on her petticoat could reasonably be said

to be that of her husband. In any case, aforesaid inference

is purely conjectural and is of no consequence.

14. Defence in cases of this kind, especially involving

married women, have to be judged in the light of the

pertinent observations made by the Apex Court in Om

Prakash vs. State of U.P., AIR 2006 SC 2214, which are

as under:-

Crl. A. No. 600/2007 Page 10 "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"

15. Upon careful reading of the testimony of the

prosecutrix (PW-5) as a whole, no infirmity can be found in

her version, which is sought to be countered by the

defence by contending that she has falsely implicated the

appellant/accused because of landlord-tenant dispute.

First of all, appellant/accused was not the landlord. He was

merely rent collecting agent of the landlord (PW-8). In any

case, it is not in dispute that Appellant was the neighbour

of the prosecutrix. Had there been any strained relations

between the Appellant and the prosecutrix (PW-5)

regarding alleged non-payment of rent, certainly, landlord

(PW-8) would have deposed about it. Strangely, to the

Crl. A. No. 600/2007 Page 11 contrary, landlord - M.A. Ahmed (PW-8) had deposed that

the relations between the appellant/accused and the

family of the prosecutrix were cordial. This takes out the

steam from the defence of the appellant/accused, which

falls flat on the ground.

16. Courts have to be socially sensitized in dealing with

crime against women entailing penal provisions.

Undeserved indulgence cannot be shown by entertaining

illusory doubts while appreciating the testimony of

prosecutrix in cases like present one. The version of the

prosecutrix is required to be tested on the touch stone of

human probability. On doing so, this court finds no reason

for taking a different view than the one, which has been

taken by the trial court. Conviction of the Appellant for the

offence of rape is well deserved and is hereby upheld.

17. On the quantum of sentence, all that can be said is

that Appellant was of the same age group as the

prosecutrix, when this incident had taken place and that

he has a family to support. All this, did not find favour with

the trial court while awarding the sentence of ten years to

the Appellant. The minimum sentence for the offence in

Crl. A. No. 600/2007 Page 12 question, is rigorous imprisonment for seven years and for

adequate and special reasons, a sentence less than the

minimum can be awarded. For the heinous crime of rape,

deterrent sentence is required to be imposed. However,

nominal roll of the Appellant impels this court to scale

down the substantive sentence from ten years to the

minimum sentence of seven years, for the reason that

despite sentence of the Appellant being suspended during

the pendency of this appeal, he could not submit the bail

bond. The reason is obvious, i.e., poverty. The conduct of

the Appellant in jail during incarceration of about five

years, is satisfactory and he is not said to be involved in

any other case. Custodial sentence of seven years would,

in the opinion of this court, be a sufficient deterrent to the

Appellant not to commit any crime in future.

18. In view of the aforesaid, the substantive sentence

imposed upon the Appellant is reduced from rigorous

imprisonment for ten years to rigorous imprisonment for

seven years. However, the sentence of fine is maintained.

19. The appeal is partly allowed to the extent indicated

above. Appellant is in custody, he be informed of the fate

Crl. A. No. 600/2007 Page 13 of this appeal through the concerned Jail Superintendant.

20. This appeal and the pending application, if any, is

accordingly disposed of.

Sunil Gaur, J.

February 01, 2010
pkb/rs




Crl. A. No. 600/2007                                    Page 14