Tameezuddin
@ Tammu Vs. State of (NCT) of Delhi [2009] INSC 1494 (26 August 2009)
Judgment
TAMEEZUDDIN
@ TAMMU
STATE OF
(NCT) OF DELHI (Criminal Appeal No.1289 of 2004) AUGUST 26, 2009 [Harjit singh
bedi and Aftab Alam, JJ.] The following Order of the Court was delivered ORDER
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 naove 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.
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