Furkan Ahemed vs State Of Nct Of Delhi
2012 Latest Caselaw 7022 Del

$~R-5
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 142/2011

%                    Judgment reserved on 26th November, 2012
                     Judgement delivered on 7th December, 2012

        FURKAN AHEMED                            ..... Appellant
                    Through:          Mr. O.D. Sharma, Adv.

                    versus

        STATE OF NCT OF DELHI                    ..... Respondent
                      Through:        Mr. Mukesh Gupta, APP

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. By way of present appeal appellant has assailed the

judgment dated 19th November, 2010 and order on sentence dated

30th November, 2010 passed by the trial court whereby he has been

convicted under Sections 376 and 506 IPC; sentenced to undergo

rigorous imprisonment for 10 years with fine of `50,000/- out of

which `40,000/- has been directed to be paid to the prosecutrix, if

deposited and remaining `10,000/- to go to the State, in default of

payment of fine to undergo simple imprisonment for six months;

sentenced to undergo rigorous imprisonment for two years with

fine of `2,000/- and in default of payment of fine to undergo

simple imprisonment for 15 days under Section 506 IPC. Both the

sentences have been directed to run concurrently, inasmuch as,

benefit of Section 428 Cr.P.C. has been accorded to appellant.

2. Prosecution story, as emerges from the record, is that the

prosecutrix along with her husband and two year old son was living

on rent in a room on the second floor of house no. A-323 Shakur

Pur, J.J. Colony Second Floor, Delhi. Appellant was also living in

a room on the same floor as a tenant. In the night intervening 20th

and 21st November, 2008 prosecutrix was sleeping in her room

with her child while her husband was away for work on night duty.

At about 3 am prosecutrix went to the toilet and when she returned

to her room she found the appellant standing in the room. As soon

as prosecutrix entered in the room appellant caught hold of her and

when she tried to raise alarm he gagged her mouth with the help of

a cloth, which was lying there; he bolted the door from inside and

showed her a knife and threatened to kill her; thereafter, he opened

her salwar, pushed her on the floor and did "galat kaam" with her.

On her raising alarm some voices were heard from outside at which

appellant jumped out of the window with the help of cable wires

and escaped. When her husband returned home in the morning she

informed him about the incident. Thereafter, she along with her

husband went to the police station Saraswati Vihar and lodged the

FIR No. 729/08 under Sections 342/376/506 IPC against the

appellant.

3. After registration of FIR on 21st November, 2008 prosecutrix

was examined at Babu Jagjivan Ram Hospital, (BJRMH) at about

08:15 pm. Her salwar was sealed by the doctor in a pullanda and

handed over to Investigating Officer. Vaginal swab of prosecutrix

was also taken, sealed and handed over to the Investigating Officer

by the doctor. Statement of prosecutrix under Section 164 Cr.P.C.

was also recorded by the Magistrate on 24th November, 2008. On

27th November, 2008 appellant along with his uncle came to police

station and was arrested. Thereafter, he was got medically

examined at BJRMH. His underwear, blood sample and semen

sample were taken, sealed and handed over to the Investigating

Officer by the doctor. Salwar and vaginal swab of the prosecutrix

as well as underwear, blood sample and semen sample of appellant

were sent to FSL and its report was obtained according to which

semen was detected on the salwar and vaginal swab of the

prosecutrix as well as on the underwear of appellant. Semen

sample was found putrefied, thus, its group could not be

ascertained. Semen found on the salwar and underwear of the

appellant was opined to be of "AB Group". As regards vaginal

swab is concerned, the group of the semen was not analyzed.

4. Prosecutrix has been examined as PW3 while her husband

has been examined as PW4. Landlady was examined as PW5. Dr.

Kumbhaz Mahargudra, who had examined the appellant, has been

produced as PW1. He has deposed that he was working in the

casualty ward of BJRMH at the relevant time. On 21st November,

2008 and 27th November, 2008 he prepared MLCs of the

prosecutrix and appellant. He has proved the MLC of appellant and

prosecutrix as Ex.PW1/A and Ex.PW1/B respectively. PW2 Dr.

Bhawana was CMO, BJRMH and has deposed that prosecutrix was

examined by Dr. Shalini under the supervision of Dr. Neelam. She

has proved the notings of Dr. Shalini. PW6 Dr. Anjali Vaish, Sr.

Resident, BJRMH has also proved the notings of Dr. Shalini. PW7

Dr. Neeraj Chaudhary, CMO, BJRMH has proved the MLC of

appellant as Ex. PW7/A. He has deposed that on examination of

appellant by Dr. Rakesh nothing was found to suggest that he was

incapable of performing sexual intercourse. PW8 V.

Shankarnarayanan, SSA (Bio), has proved the FSL report as

PW8/A. PW11 SI Raj Bala is the Investigating Officer and has

given overall view of the investigation conducted by her. All other

witnesses are formal in nature as they were joined in investigation

at one stage or the other.

5. Statement of appellant under Section 313 Cr.P.C. was

recorded wherein entire incriminating material, which had come on

record during the trial, was put to him. He denied the same. He

denied that he had committed rape upon the prosecutrix in the night

intervening 20th and 21st November, 2008. He has stated that he is

a building thekedar and had given `25,000/- to the husband of

prosecutrix; when he demanded the same back he has been falsely

implicated in this case. He also examined brother of his father-in-

law as DW1, who has deposed that the appellant had paid

`25,000/- to the husband of prosecutrix for three-four months. On

20th November, 2008 he went to the residence of prosecutrix with

the appellant at about 7-8 pm and demanded money at which

prosecutrix and her husband threatened the appellant that they

would implicate him in some false case in case money was

demanded again. Appellant has not denied that he was living in the

same building and on the same floor, as a tenant. In fact, from the

defence taken by him it is clear that he was well known to the

prosecutrix.

6. Learned counsel for the appellant has vehemently contended

that there is an inordinate delay in lodging the FIR which creates a

serious doubt about the prosecution story. Incident had allegedly

taken place at about 3 am; whereas FIR had been registered at 5:30

pm. This delay makes it clear that the FIR was got registered after

due deliberations. Delay in lodging the FIR in this case is fatal and

creates a doubt about the veracity of prosecutrix‟s version, thereby

making the appellant entitled to acquittal. He has placed reliance

on Mohan Singh versus State of Haryana 2004 (3) C.C. Cases

(HC) 267 and Chander Bahadur versus The State 1997 (1) C.C.

Cases 304 (HC). I do not find any force in this contention of the

learned counsel. There is no gainsaying that delay in lodging the

FIR, if explained by sufficient and logical reasons it would not be

fatal, inasmuch as the prosecution story cannot be disbelieved

merely on the ground of delay in such circumstances. In State of

Punjab versus Ramdev Singh AIR 2004 SC 1290, Supreme Court

has held that the delay in lodging the FIR cannot be used as a

ritualistic formula for doubting the prosecution case and discarding

the same solely on the ground of delay in lodging the first

information report. Delay has the effect of putting the Court in its

guard to search if any explanation has been offered for the delay,

and if offered, whether it is satisfactory or not. If the prosecution

fails to satisfactorily explain the delay and there is possibility of

embellishment in prosecution version on account of such delay, the

same would be fatal to the prosecution. However, if the delay is

explained to the satisfaction of the Court, same cannot by itself be

a ground for disbelieving and discarding the entire prosecution

version. In the present case, delay in lodging the FIR has been

suitably explained. Prosecutrix was alone in the house as her

husband had gone for work on night duty. Incident took place at 3

am when prosecutrix was alone in her room along with her two

year old son. Her husband returned home in the morning at about

9 am and only thereafter she informed him about the incident and

thereafter they decided to lodge the FIR and went to the police

station. PW11 SI Raj Bala, who was posted at Rape Crisis Cell,

has deposed that she received information about the incident from

the duty officer at police station at about 4 pm and thereafter she

reached the police station at about 4:30 pm where the prosecutrix

and her husband were present. She recorded the statement of the

prosecutrix and got the FIR registered and sent the prosecutrix for

medical examination; meaning thereby that prosecutrix and her

husband reached the police station in the afternoon and since the

police officer, working in the Rape Crisis Cell, was not present,

they had to wait for her arrival. All this resulted in delay in

lodging the FIR which will not be fatal in the facts and

circumstances of the present case. Judgments relied upon by the

learned counsel for the appellant are in the context of different

facts and are of no help to the appellant. In Mohan Singh (supra),

there was delay of about 11 days in lodging the FIR which

remained unexplained. Similarly, in Chander Bahadur (supra),

husband of the prosecutrix was working as a driver with an

advocate. It came in his statement that after being confided in by

his wife that she was raped he did not go to the police station;

instead he went to consult his advocate and thereafter went to the

police station. Accordingly, it was held that FIR was lodged after

due deliberations and consultations.

7. Learned counsel for the appellant has next contended that the

prosecutrix is not a trustworthy and reliable witness in view of

inconsistent stand taken by her at different stages of the

investigations and trial. In the FIR, prosecutrix had stated that

when she returned from the bathroom she found the appellant

standing in her room; whereas in her statement under Section 164

Cr.P.C. she stated that when she returned she saw the appellant

sitting in the room. While deposing in Court, prosecutrix again

changed this version and stated that the appellant was standing in

the room. In the FIR and while deposing in Court she stated that

the appellant had gagged her mouth with the help of a cloth,

however, in her statement under Section 164 Cr.P.C. she has not

mentioned about it. She only stated that appellant gagged her

mouth. In the FIR, she stated that appellant showed her a knife and

threatened that in case she raised alarm she would be killed. While

in her statement under Section 164 Cr.P.C. she stated that the

appellant showed her a knife and said that in case she raised alarm

he would kill her. While deposing in Court she stated that appellant

took out a knife and said that if she raised alarm he would kill her.

In the FIR, prosecutrix stated that when she raised alarm some

voice was heard coming from outside at which appellant escaped

through the window with the help of cable wires. This statement

was reiterated by her while deposing in Court. However, she is

silent about raising alarm in her statement under Section 164

Cr.P.C. In my view, the discrepancies as pointed out by the

learned counsel are insignificant and minor in nature and are not

sufficient to discredit the statement of the prosecutrix.

8. In Vijay @ Chinee versus State of Madhya Pradesh

2010(8)UJ3727, Apex Court held that the evidence of witnesses

must be read as a whole and the cases are to be considered in

totality of the circumstances and while appreciating the evidence of

a witness, minor discrepancies on trivial matters, which do not

affect the core of the prosecution case, should not be taken into

consideration as they cannot form grounds to reject the evidence as

a whole. It has been further held that even if there are some

omissions, contradictions and discrepancies, the entire evidence

cannot be disregarded. After exercising care and caution and sifting

the evidence to separate truth from untruth, exaggeration and

improvements, the court comes to a conclusion as to whether the

residuary evidence is sufficient to convict the accused. Thus, undue

importance should not be attached to omissions, contradictions and

discrepancies which do not go to the heart of the matter and shake

the basic version of the prosecution witness. As the mental

capabilities of a human being cannot be expected to be attuned to

absorb all the details, minor discrepancies are bound to occur in the

statements of witnesses. In State versus Saravanan and Anr. AIR

2009 SC 152, Supreme Court held that while appreciating the

evidence of a witness, minor discrepancies on trivial matters

without affecting the core of the prosecution case, ought not to

prompt the court to reject evidence in its entirety. Further, on the

general tenor of the evidence given by the witness, the trial court

upon appreciation of evidence forms an opinion about the

credibility thereof; in normal circumstances the appellate court

would not be justified to review it once again without justifiable

reasons. It is the totality of the situation which has to be taken note

of. Difference in some minor details, which does not otherwise

affect the core of the prosecution case, even if present, that itself

would not prompt the court to reject the evidence on minor

variations and discrepancies.

9. When statement of prosecutrix (PW3) is read as a whole, in

the backdrop of above settled legal position, I find it to be

trustworthy and reliable and, in my view, the same has rightly been

accepted by the trial court to conclude that it was the appellant who

had committed rape upon the prosecutrix in the intervening night

of 20th and 21st November, 2008.

10. Above all, I find that the statement of prosecutrix is

corroborated by the scientific evidence. Salwar of the prosecutrix

was taken into possession, sealed and handed over to the

Investigating Officer by the doctor who had examined the

prosecutrix. Similarly, underwear, of the appellant was taken in

possession, sealed and handed over to the Investigating Officer by

the doctor who had examined the appellant. Later abovesaid

articles were sent to FSL. A perusal of FSL report indicates that

semen was found on the salwar of prosecutrix and underwear of

the appellant and the same has been opined to be of „AB‟ Group

and this factor lends credence to the prosecutrix‟s version. It may

also be noted here that the doctor who had examined the appellant

has categorically mentioned in his MLC Ex.PW1/A that there was

nothing to show that appellant was incapable of performing sexual

intercourse.

11. Now coming to the defence of the appellant, in my view

same has no force. First of all, appellant has failed to lead any

cogent evidence to establish the same inasmuch as even DW1 has

failed to give date, time and month of extending such a loan. He

has not even deposed that the same was given by the appellant in

his presence. Secondly, it is difficult to believe that the prosecutrix

would have falsely implicated the appellant by staking her

reputation and the reputation of her family, only to avoid payment

of `25,000/-. This plea of the appellant lacks plausibility and is

highly incredible.

12. For the foregoing reasons, conviction of the appellant under

Section 376 IPC is upheld. Prosecutrix has categorically deposed

that appellant had threatened to kill her by showing a knife, thus, in

my view, appellant has been rightly convicted under Section 506

IPC by the trial court. However, sentence of appellant under

Section 376 IPC is reduced to seven years keeping in mind that

appellant has no past criminal record, has a family comprising of

his wife, one child and old aged parents who are totally dependent

upon him, inasmuch as his jail conduct is satisfactory.

13. Appeal is disposed of in the above terms.

14. Copy of this judgment be sent to the Jail Superintendent for

serving it on the appellant as also for compliance.

A.K. PATHAK, J.

DECEMBER 07, 2012 ga