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2013 DIGILAW 2443 (DEL)

Afsar Ahmed v. State (N. C. T. of Delhi)

2013-12-20

SUNITA GUPTA

body2013
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. 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. 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.