Afsar Ahmed vs The State (N.C.T. Of Delhi)
2013 Latest Caselaw 5925 Del

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*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                           DATE OF DECISION: 20th DECEMBER, 2013


+                 CRL.A. 207/2010 and Crl. M.A. 17146/2013

           AFSAR AHMED                                            ..... Appellant
                                    Through:   Mr. Vivek Sood, Advocate.

                                    versus

           THE STATE (N.C.T. OF DELHI)                ..... Respondent
                          Through: Ms. Fizani Husain, APP for the
                                    State.

           CORAM:
           HON'BLE MS. JUSTICE SUNITA GUPTA

                                    JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 28.07.2009 and

the order of sentence dated 01.09.2009, in Sessions Case No.20/2007

arising out of FIR No.23/2007, P.S. Hazrat Nizammudin Railway

Station vide which the appellant/accused was convicted for the offence

punishable u/s 376/506 IPC and sentenced to undergo rigorous

imprisonment for a period of 10 years and fine of Rs.10,000/-, in

default, simple imprisonment for 6 months for offence u/s 376 IPC and

sentenced to undergo rigorous imprisonment for 6 months for the

offence u/s 506 IPC. Both these sentences were to run concurrently.

2. The prosecution case, in brief, is that on 27.02.2007, at about

2.40 a.m on receipt of DD No.4A, Inspector Shashi Bala reached Okhla

Railway station where she met HC Inderpal, Senior Pointsman

Surender Kumar, the prosecutrix and accused Afsar Ahmed.

Prosecutrix informed her that accused had committed rape upon the

her. Inspector Shashi Bala recorded the statement of the prosecutrix

and got her medically examined and also obtained the MLC of the

prosecutrix.

3. On the statement of the prosecutrix and on the basis of her MLC,

a case u/s 376/506 IPC was registered against the accused. After

completing investigation, charge sheet was submitted against the

appellant-accused.

4. Prima facie, a case u/s 354/376/506 IPC was made out against

the accused. Charges were framed accordingly, to which he pleaded

not guilty and claimed trial.

5. In order to substantiate its case, prosecution examined 16

witnesses. The statement of the accused u/s 313 Cr.P.C was recorded

wherein he pleaded innocence and alleged that a false case has been

foisted upon him and all the witnesses are interested witnesses.

However, he chose not to lead any evidence in his defence.

6. After meticulously examining the evidence led by the parties,

vide impugned orders, the appellant was convicted and sentenced as

mentioned above.

7. Feeling aggrieved, the present appeal was preferred by the

appellant.

8. I have heard Sh. Vivek Sood, Advocate for the appellant and Ms.

Fizani Hussain, learned Additional Public Prosecutor for the State and

have perused the record.

9. Learned counsel for the appellant has opted not to challenge the

conviction u/s 376/506 IPC. He, however, prays for a lenient view as

regards quantum of sentence on the ground that appellant has already

undergone a period of more than 7-1/2 years in jail, as such, he be

released on the period already undergone.

10. Learned APP for the State has not strongly opposed the prayer

made by learned counsel for the appellant.

11. I have considered the submissions of the parties and have

examined the Trial Court record. The appellant has not opted to

challenge the findings of the Trial Court on conviction u/s 376/506

IPC. Even otherwise, same does not suffer from any infirmity,

therefore, the order of conviction passed by learned Trial Court stands

confirmed.

12. Coming to the quantum of sentence, it is submitted by learned

counsel for the appellant that although appellant is innocent and has

been falsely implicated in this case, yet he is not challenging his

conviction but the consent of the prosecutrix , who was aged about 35

years is apparent from the fact that PW5 Surender Kumar found her

and the appellant naked. Moreover no injuries were found on her

body. Clothes of the prosecutrix were not found torn, which is

indicative of consensual sexual intercourse. Moreover as per the

testimony of PW-1 Dr. Priyanka Yadav, injury would have been

probable on the body of a person who is raped on a railway track. The

appellant has already undergone minimum sentence of 7 years as

prescribed under Section 376 IPC and in fact is in jail for last more

than 7-1/2 years, as such, he be released on the period already

undergone. It was further submitted that he is an auto rickshaw driver

and is the sole bread earner of his family consisting of his aged mother,

wife and two children and there is nobody to look after them.

13. As per the nominal roll received from Superintendent Jail, the

appellant has already undergone as on 08.11.2013, 6 years 7 months

and 24 days, besides earning remission for 1 year 4 months and 19

days. Out of 10 years rigorous imprisonment, the unexpired portion of

sentence is 1 year 11 months and 7 days , meaning thereby that the

appellant has remained in jail for a period of more than 7-1/2 years. His

overall conduct has been reported to be satisfactory.

14. Keeping all these factors in mind, ends of justice will be met if

the substantive sentence of imprisonment is modified to the period

already undergone by the appellant in jail, however, the sentence of

fine of Rs.10,000/- in default, simple imprisonment for 6 months will

remain unaltered.

With these observations, the appeal and the pending applications,

if any, stands disposed of.

Copy of the order along with Trial Court record be sent back.

Intimation be sent to appellant through Superintendent Jail by the

Registry.

SUNITA GUPTA (JUDGE) DECEMBER 20, 2013 as