FURKAN AHEMED Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) BY way of present appeal appellant has assailed the judgment dated 19th November, 2010 and order on sentence dated 30th November, 2010 passed by the trial court whereby he has been convicted under Sections 376 and 506 IPC; sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.50,000/ - out of which Rs.40,000/ - has been directed to be paid to the prosecutrix, if deposited and remaining Rs.10,000/ - to go to the State, in default of payment of fine to undergo simple imprisonment for six months; sentenced to undergo rigorous imprisonment for two years with fine of Rs.2,000/ - and in default of payment of fine to undergo simple imprisonment for 15 days under Section 506 IPC. Both the sentences have been directed to run concurrently, inasmuch as, benefit of Section 428 Cr.P.C. has been accorded to appellant. Prosecution story, as emerges from the record, is that the prosecutrix along with her husband and two year old son was living on rent in a room on the second floor of house No. A -323 Shakur Pur, J.J. Colony Second Floor, Delhi. Appellant was also living in a room on the same floor as a tenant. In the night intervening 20th and 21st November, 2008 prosecutrix was sleeping in her room with her child while her husband was away for work on night duty. At about 3 am prosecutrix went to the toilet and when she returned to her room she found the appellant standing in the room. As soon as prosecutrix entered in the room appellant caught hold of her and when she tried to raise alarm he gagged her mouth with the help of a cloth, which was lying there; he bolted the door from inside and showed her a knife and threatened to kill her; thereafter, he opened her salwar, pushed her on the floor and did "galat kaam" with her. On her raising alarm some voices were heard from outside at which appellant jumped out of the window with the help of cable wires and escaped. When her husband returned home in the morning she informed him about the incident. Thereafter, she along with her husband went to the police station Saraswati Vihar and lodged the FIR No. 729/08 under Sections 342/376/506 IPC against the appellant.

(2.) AFTER registration of FIR on 21st November, 2008 prosecutrix was examined at Babu Jagjivan Ram Hospital, (BJRMH) at about 08:15 pm. Her salwar was sealed by the doctor in a pullanda and handed over to Investigating Officer. Vaginal swab of prosecutrix was also taken, sealed and handed over to the Investigating Officer by the doctor. Statement of prosecutrix under Section 164 Cr.P.C. was also recorded by the Magistrate on 24th November, 2008. On 27th November, 2008 appellant along with his uncle came to police station and was arrested. Thereafter, he was got medically examined at BJRMH. His underwear, blood sample and semen sample were taken, sealed and handed over to the Investigating Officer by the doctor. Salwar and vaginal swab of the prosecutrix as well as underwear, blood sample and semen sample of appellant were sent to FSL and its report was obtained according to which semen was detected on the salwar and vaginal swab of the prosecutrix as well as on the underwear of appellant. Semen sample was found putrefied, thus, its group could not be ascertained. Semen found on the salwar and underwear of the appellant was opined to be of "AB Group". As regards vaginal swab is concerned, the group of the semen was not analyzed.

(3.) STATEMENT of appellant under Section 313 Cr.P.C. was recorded wherein entire incriminating material, which had come on record during the trial, was put to him. He denied the same. He denied that he had committed rape upon the prosecutrix in the night intervening 20th and 21st November, 2008. He has stated that he is a building thekedar and had given Rs.25,000/ - to the husband of prosecutrix; when he demanded the same back he has been falsely implicated in this case. He also examined brother of his father -in -law as DW1, who has deposed that the appellant had paid Rs.25,000/ - to the husband of prosecutrix for three -four months. On 20th November, 2008 he went to the residence of prosecutrix with the appellant at about 7 -8 pm and demanded money at which prosecutrix and her husband threatened the appellant that they would implicate him in some false case in case money was demanded again. Appellant has not denied that he was living in the same building and on the same floor, as a tenant. In fact, from the defence taken by him it is clear that he was well known to the prosecutrix.