[2009] 14 (ADDL.) S.C.R. 80 TAMEEZUDDIN @ TAMMU

v. 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

O R D E R

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.