The appellant herein, Tameezuddin, was convicted under
Section 376 of the IPC by the Court of Sessions and sentenced to
undergo R.I. for 84 months and a fine of Rs.14,000/- and in default
of payment of fine to further undergo R.I. for six months and under
Section 506 (ii) of the IPC, to a sentence of 36 months and fine
and in default of payment of fine, to undergo R.I. for one month,
both the sentences were directed to run concurrently.
As per the prosecution story PW.1, the prosecutrix, and her
husband, PW-2 Dinesh Mishra who was a rickshaw puller by
profession, had come to Delhi along with her children two months
prior to the occurrence. On 28th September, 1995, PW-1 & PW-2
had gone to the latter’s ex-employer, a factory owner DW.1 Mohd.
Zaki, to recover some money that was due to him. When they
reached the factory premises they found that DW-1 was not
present but several other persons including the appellant, a shop
keeper who was known to PW-2, were present. The appellant sent
PW.2 out of the factory on the pretext of buying some meat and
after some of the workmen who were present had left, he caught
hold of the prosecutrix, took her to the first floor of the factory and
then committed rape upon her and threatened that in case she reported the matter to anybody she would be dealt with. PW.2
returned a short while later and she narrated the entire story to
him. PW. 2, however, told the appellant that whatever had
happened was to be forgotten and that bygones were to be
bygones but he nevertheless took the appellant to the police
station accompanied by PW-1 and their children and lodged the
FIR against the appellant. The appellant was also arrested in the
police station at that very time and in due course was sent up for
trial.
In order to support its case the prosecution examined PW.1
the prosecutrix; PW.2, Dinesh Chand Mishra, her husband; PW.9
Dr. Charu Lata who had examined the prosecutrix but had found
no evidence of rape or any injury on her person and PW.10 Dr. R.
Dyal, who had medically examined the appellant and opined that
there was nothing to suggest that he was incapable of performing
sexual intercourse. Dr. Charu Lata also took the vaginal swabs of
the prosecutrix and removed the salwar that she was wearing at
that time and sent both these articles for examination to the FSL.
The report of the Laboratory revealed the presence of semen on
the vaginal swabs as well as on the salwar.
The trial Court while commenting on the evidence of PW.1 and
PW.2 observed that it would be difficult to believe that any self-
respecting woman or her husband would come forward to make a
humiliating statement against her honour and that, in such a
situation, her statement alleging rape was to be accepted more
particularly as there was no discrepancy of the nature that could
be fatal to the prosecution’s case. Accepting the aforesaid
evidence, the trial Court convicted and sentenced the accused as already mentioned above. The judgment of the trial Court was
affirmed by the High Court in appeal. The matter is before us at the
instance of the accused by way of special leave.
Mr. Bagga, the learned amicus curiae for the appellant has,
first and foremost, pointed out that the story projected by the
prosecution was on the face unacceptable, in the light of the fact
that PW.1 had narrated the entire story to PW.2, her husband, but
they had still managed to lure the appellant to the police station
and had handed him over to the police. He has submitted that this
story did not fit in with normal human conduct so as to inspire
confidence in the prosecution story. He has further pointed out that
some corroboration for the ocular account could have been found
from the medical evidence but this too was uncertain as Dr. Charu
Lata PW.9 had deposed that there was no evidence to suggest the
commission of rape. He has also submitted that as per the
prosecution story itself there were at least two persons present in
the factory premises at the time of the commission of the rape and
(though as per the statement of the investigating officer) their
statements had been recorded under Section 161 of the Cr.P.C.,
they had not been produced in evidence. He has accordingly
pointed out that the defence story projected by DW.1 Mohd. Zaki,
the owner of the factory premises, that no amount was due
towards PW.2, infact knocked out the foundations of the
prosecution story.
The learned counsel for the State has, however, submitted that
the courts below had found, on a minute appreciation of the
evidence, that the statements of PW.1 and PW2 had to be
accepted and merely because the medical examination was indeterminate and did not reveal anything categoric in favour of the
prosecution, was no reason to disbelieve their statements, more
particularly as semen stains had been found on the swabs and the
salwar.
It is true that in a case of rape the evidence of the prosecutrix
must be given predominant consideration, but to hold that this
evidence has to be accepted even if the story is improbable and
belies logic, would be doing violence to the very principles which
govern the appreciation of evidence in a criminal matter. We are of
the opinion that story is indeed improbable. We note from the
evidence that PW.1 had narrated the sordid story to PW.2 on his
return from the market and he had very gracefully told the
appellant that everything was forgiven and forgotten but had
nevertheless lured him to the police station. If such statement had
indeed been made by the PW.2 there would have been no
occasion to even go to the police station. Assuming, however, that
the appellant was naïve and unaware that he was being lead
deceitfully to the police station, once having reached there he
could not have failed to realize his predicament as the trappings of
a police station are familiar and distinctive. Even otherwise, the
evidence shows that the appellant had been running a kirana shop
in this area, and would, thus, have been aware of the location of
the Police Station. In this view of the matter, some supporting
evidence was essential for the prosecution’s case. As already
mentioned above the medical evidence does not support the
commission of rape. Moreover, the two or three persons who were
present in the factory premises when the rape had been committed
were not examined in Court as witnesses though their statements
had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar
had semen stains thereon would, at best, be evidence of the
commission of sexual intercourse but not of rape. Significantly
also, the semen found was not co-related to the appellant as his
blood samples had not been taken. In this background the
evidence of the defence witness, Mohd. Zaki becomes very
relevant. This witness testified that there was no occasion for
PW.2 to have come to the factory as no payment was due to him
on any account. The courts below were to our mind remiss in
holding that as no written accounts had been maintained by Mohd.
Zaki and no receipt relating to any earlier payment to PW.2 had
been produced by him, his testimony was not acceptable, the more
so, as the factory was a small one and Mohd. Zaki was a petty
factory owner.
We also see from the orders passed by this Court from time to
time and particularly the Order of 25th October, 2004 that the
counsel for the appellant had pointed out that though the appellant
had been sentenced to imprisonment for a term of seven years, he
had already exceeded that period but was still in custody and he
was accordingly bailed out after verifying this fact on 16th
November 2004. In normal circumstances we would not have
passed a detailed order in this background but as an allegation of
rape, is one of the most stigmatic of crimes, it calls for intervention
at any stage.
Before ending we must record our appreciation of Mr. Bagga’s
efforts.
We accordingly allow the appeal, set aside the judgments of the trial
Court and the High Court and order the appellant’s acquittal.