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2002 DIGILAW 76 (PNJ)

Akhtar v. State Of Haryana

2002-01-11

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. Vide order dated 12.6.2000 passed in Sessions Case No. 26 dated 4.6.1998 (F.I.R. No. 54 dated 23.2.1998 of Police Station Punhana) Additional Sessions Judge, Gurgaon found the charge under Sections 342/506/376(2)(g) of the Indian Penal Code proved against Akhtar and Rustam and he accordingly convicted them thereunder and sentenced them as follows :- 342 IPC six months RI each. 506 IPC one year RI each 376(2)(g) ten years RI each. and pay fine of Rs. 500/- each. In default of payment of fine to further undergo rigorous imprisonment for one year each. Substantive sentences of imprisonment were ordered to run concurrently. 2. The prosecution case, in brief is that on 18.2.1998 at about 2 or 2.30 p.m. Ms. Farmina daughter of Rehman who is married at village Akhbarpur to one Jaicum son of Ibraham Meo came to know that her mother was unwell at her native village Kherla Punhana. Her husband was not at the house. Her father-in-law was also not at the house. At about 4.00 p.m., she came to bus stand of village Punhana. There, Akhtar and Rustam met her. She had known them since earlier as they also belong to village Kherla Punhana. They were also waiting for the arrival of some bus for village Kherla Punhana. They enquired her about her health. They told her that they were also going to village Kherla Punhana and they would take some time in collecting clothes from the washerman. They suggested her to accompany them to the house of that washerman. They told her that after collecting clothes, they all would start for village Kherla by bus. When they were going to the house of that washerman both of them told her that she was in their possession and she should do whatever she would be called upon to do. They told her to behave as if she were the wife of Akhtar before the washerman. Akhtar, Rehman and Farmina reached the house of the washerman. Akhtar told the washerman that she was his wife and that they had quarrel with his parents. They requested him to allow them to stay there for a day or so and, thereafter they would some room and they would shift there. Washerman acceded to their request. He had one vacant room with him. He allowed them to occupy that room and stay there. They requested him to allow them to stay there for a day or so and, thereafter they would some room and they would shift there. Washerman acceded to their request. He had one vacant room with him. He allowed them to occupy that room and stay there. After they had occupied that room, washerman left on some thing urgent. In the absence of washerman, Rustam closed the door from inside. Akhtar had sexual intercourse with her against her will and without her consent. Thereafter, Rustam had sexual intercourse with her against her will and without her consent. Thereafter, both of them subjected her to sexual intercourse turn by turn against her will and without her consent. After they had subjected her to sexual intercourse against her will and without her consent, Akhtar and Rustam both left and told her that she would be done to death if she disclosed to any one of this incident. Out of fear, she did not raise any raula. After they had left, finding opportunity, she slipped from there and reached village Kherla Punhana. She narrated the incident to her mother and brother Islam. After the Panchayat had failed to provide her redress, she took her bother Islam with her and reached Police Station, Punhana where she made statement Ex.PJ. She was medically examined by Dr. Rekha Yadav, Medical Officer General Hospital, Gurgaon on 30.1.1998 at about 8 p.m. Dr. Lal Singh, Medical Officer, medically examined Akhtar and Rustam on 26.2.1998 and he was of the opinion that there was nothing to suggest that they were incapable of performing sexual intercourse. According to Dr. Rekha Yadav, Farmina had been subjected to sexual intercourse recently. Her statement was recorded under Section 164 Cr.P.C. by a Judicial Magistrate of the Ist Class. After investigation, Akhtar and Rustam were challaned under Sections 342/506/376 of the Indian Penal Code. The case was committed to the court of Session by Judicial Magistrate Ist Class, Ferozepur Jhirka vide order dated 20.5.1998. 3. Vide order dated 15.7.1998, they were charged under Sections 342/376(2)(g) and 506 of the Indian Penal Code by Additional Sessions Judge, Gurgaon. They pleaded not guilty to the charge and claimed trial. 4. At the conclusion of the trial, Akhtar and Rustam were convicted and sentenced as indicated above by Additional Sessions Judge, Gurgaon vide order dated 12.6.2000. 5. 3. Vide order dated 15.7.1998, they were charged under Sections 342/376(2)(g) and 506 of the Indian Penal Code by Additional Sessions Judge, Gurgaon. They pleaded not guilty to the charge and claimed trial. 4. At the conclusion of the trial, Akhtar and Rustam were convicted and sentenced as indicated above by Additional Sessions Judge, Gurgaon vide order dated 12.6.2000. 5. Aggrieved from the order dated 12.6.2000, whereby they have been convicted and sentenced by the Additional Sessions Judge, Gurgaon, they have come up in appeal to this Court. 6. I have heard the learned Counsel for the appellants, the learned Assistant Advocate General, Haryana for the State and have gone through the record. 7. Smt. Farmina PW.7 is the star witness of the prosecution. She has supported the prosecution case through and through. It was submitted by the learned Counsel for the appellants that the story which she has put forth is improbable and is against human conduct. It was submitted that when she was at bus stand of village Punhana and was waiting for some bus for village Kherla Punhana, why did she accompany Akhtar and Rustam to the house of washerman. She should have told them that instead, she would go home to village Kherla Punhana. It was submitted that she agreed and accompanied them as she wanted to have sex with them. It was submitted that if she was not a consenting party to the act of sexual intercourse with them, she would have rejected the suggestion of Akhtar that she should keep mum when she would be passed off as his wife to the washerman. It was submitted that she should have told them that she would not accompany them if this was the frame of their mind. It was submitted that after reaching the house of washerman when Akhtar told the washerman that she was his wife, she should have at once protested and said that she was not his wife instead she was the wife of Jaicum of village Akbarpur and was going to village Kherla Punhana to enquire about the health of her mother and she had agreed to accompany them as they were from her village. It was submitted that she should have sensed foul play on their part when the washerman slipped and she was alone left in their company. It was submitted that she should have sensed foul play on their part when the washerman slipped and she was alone left in their company. It was submitted that she herself should also have slipped when the washerman slipped. It was submitted that all this shows that the story she has sought to put forth is riddled with human improbabilities and should not be believed. 8. Suffice it to say, there is no improbability so far as the prosecution case is concerned. Farmina is a young woman aged 19/20 years. She was to go to village Kherla Punhana. At bus stand Punhana at about 4 p.m., Akhtar and Rustam met her. They belong to her village Kherla Punhana. She confided in them that she would safely reach village Kherla Punhana in their company. To my mind, she could not think of any foul play on their part even in her dreams when they were the residents of her own village. She thought that they would guard her as if she was their sister on her way to village Kherla Punhana. How could she know that they would turn dishonest and ravish her ? How could she raise any protest before the washerman when Akhtar said that she was his wife and they would stay there for a day or so as they had been turned out by his father and thereafter they would arrange for a tenanted room and would shift to that room ? How could she run away when she was in their possession ? In the world of human affairs, we see that there is breach of faith like this some times. Some time one is betrayed by the one in whom implicit faith is reposed. 9. It was submitted by the learned Counsel for the appellants that she voluntarily submitted herself to Akhtar and Rustam. If she had not voluntarily submitted herself to them, she would have raised hue and cry when she was being raped. She has stated that she did not raise any raula out of shame. 10. It appears that she did not raise any raula either out of shame or out of fear as she was in their possession and they could throttle her to death. 11. It was next submitted that her version is not spontaneous. She has stated that she did not raise any raula out of shame. 10. It appears that she did not raise any raula either out of shame or out of fear as she was in their possession and they could throttle her to death. 11. It was next submitted that her version is not spontaneous. Occurrence is said to have taken place on 18.2.1998 and the matter was reported to the Police on 23.2.1998. It was submitted that there was no explanation for this inordinate delay. It was submitted that delayed version gets denuded of spontaneity and naturalness. It is imbued with exaggerations and embellishments. In my opinion, there is reasonable and plausible explanation for delay in lodging the First Information Report to the Police. She is a Muslim and the accused are also Muslims. A Panchayat was convened on 19.2.1998. The accused did not appear before the Panchayat. Families of the accused promised to produce them before the Panchayat on 21.2.1998. On 21.2.1998, they again did not appear and they appeared before the Panchayat only on 23.2.1998. Since the Panchayat failed to provide redress to her, the matter was reported to the Police eventually on 23.2.1998. It is generally seen that such matters sometimes are not at all reported to the police, and effort is made to secure redress to the prosecutrix through the intervention of baradri Panchayat. It is only after the Panchayat fails to secure redress to the prosecutrix that the matter is reported to the Police. She has stated that she suggested to the Panchayat that their faces be blackened and they are paraded across the village. It was submitted by the learned Counsel for the appellants that there is no mention of this fact in her statement recorded before the Magistrate under Section 164 Cr.P.C. Suffice it to say this is only an omission. No value can be attached to this submission. Fact of the matter is that she did not want to take the matter to the Police. She wanted the matter to be decided by the baradari Panchayat. The matter was reported to the Police on 23.2.1998 after the Panchayat had failed to give her redress. In this case, delay if any, in lodging the F.I.R. has been satisfactorily explained. It was next submitted that the clothes of Farmina were not taken into possession. She wanted the matter to be decided by the baradari Panchayat. The matter was reported to the Police on 23.2.1998 after the Panchayat had failed to give her redress. In this case, delay if any, in lodging the F.I.R. has been satisfactorily explained. It was next submitted that the clothes of Farmina were not taken into possession. Suffice it to say that if clothes of the prosecutrix which she was wearing at the time when she was raped had been taken into possession, that would have shown nothing more when in this vaginal swabs were taken. Assistant Director (Biology) Forensic Science Laboratory (Haryana) Madhuban (Karnal) detected human semen on the vaginal swabs. It was submitted by the learned Counsel that, no wonder, her husband visited her between 18.2.1998 and 23.2.1998 and had sexual intercourse with her and this was his semen which was detected on the vaginal swabs by the Assistant Director (Biology) Forensic Laboratory (Haryana) Madhuban (Karnal). Suffice it to say, there is not even a faint suggestion to the prosecutrix that between 18.2.1998 to 23.2.1998 her husband had access to her and he had sexual intercourse with her and it was his semen which was detected on the vaginal swabs by the Assistant Director (Biology) Forensic Laboratory, Madhuban. 12. It was next submitted that she gave no resistance. In this case, she was not in a position to offer any resistance as how could she offer any resistance against the might of two young males. She was a raw woman aged 19/20 years carrying two months pregnancy. It was next submitted that Akhtar is nephew and Rustam is his uncle and it was improbable that nephew and uncle would rape the same woman. Suffice it to say, there is no improbability in the prosecution case on this score. We cannot go on surmises and conjectures when there is positive statement of Farmina prosecutrix imputing rape to both of them. It was next submitted that Islam had taken Rs. 15,000/- as loan from Rustam. He was asking him for the repayment of loan which he was not repaying and this case was foisted upon Rustam so as to gag his mouth that he did not ask for the repayment of the loan amount. In my opinion, no woman would make a complaint of an offence involving her virtue simply to enable her brother to digest loan of Rs. 15,000/-. In my opinion, no woman would make a complaint of an offence involving her virtue simply to enable her brother to digest loan of Rs. 15,000/-. 13. It was for the accused to have proved that she was a consenting party to the act of sexual intercourse with them. If a woman shows that she was subjected to sexual intercourse against her will and without her consent, it will have to be presumed that she was subjected to sexual intercourse against her will and without her consent and it will be for her ravisher to prove that she was a consenting party to the act of sexual intercourse. Section 114-A of the Evidence Act lays down as follows :- "In a prosecution for rape under Cl. (a) or Cl. (b) or Clause (c) or Cl. (d) or Cl. (e) or Cl. (g) of sub-section (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 14. It was thus for Akhtar and Rustam to bring on record the circumstances from which it could be inferred that she was consenting party to the act of sexual intercourse. In this case, nothing has been brought on the record to suggest that it was a case of consent. 15. It was a case of gang rape inasmuch as she was raped by Akhtar and Rustam. No inference can be drawn against the prosecution because of non-production of washerman. The washerman was cited as a prosecution witness. He was given up as won over. Farmina had no axe to grind against Akhtar and Rustam why should she have come forward and wreak her married life and state that accused Akhtar and Rustam raped her if she were a consenting party. If she were a consenting party, she would have kept mum and allowed the matter to go unreported. She would have swallowed the incident as if nothing had happened to her. For the reasons given above, I am of the considered opinion that Akhtar and Rustam were justifiably convicted and sentenced by the learned Additional Sessions Judge, Gurgaon. If she were a consenting party, she would have kept mum and allowed the matter to go unreported. She would have swallowed the incident as if nothing had happened to her. For the reasons given above, I am of the considered opinion that Akhtar and Rustam were justifiably convicted and sentenced by the learned Additional Sessions Judge, Gurgaon. Sentence passed upon them cannot be slashed as it is a case of gang rape where ten years is the minimum sentence. Appeal is accordingly dismissed. Appeal dismissed.