Akram s/o Munna Miyan v. The State (Govt.of NCT Delhi)

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 2010:DHC:1092 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 coaccused 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) 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 – 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 – 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: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

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 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