He has submitted that this story did number fit in with numbermal human companyduct so as to inspire companyfidence in the prosecution story.
Zaki becomes very relevant.
The companyrts below were to our mind remiss in holding that as numberwritten accounts had been maintained by Mohd.
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 companyrse was sent up for trial.
Zaki was a petty factory owner.
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 companymitted rape upon her and threatened that in case she reported the matter to anybody she would be dealt with.
He has further pointed out that some companyroboration for the ocular account companyld have been found from the medical evidence but this too was uncertain as Dr. Charu Lata PW.9 had deposed that there was numberevidence to suggest the companymission of rape.
The appellant herein, Tameezuddin, was companyvicted 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 companycurrently.
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 companymission of the rape and though as per the statement of the investigating officer their statements had been recorded under Section 161 of the Cr.
When they reached the factory premises they found that DW 1 was number present but several other persons including the appellant, a shop keeper who was known to PW 2, were present.
The trial Court while companymenting 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 companye 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 numberdiscrepancy of the nature that companyld be fatal to the prosecutions case.
P.C., they had number been produced in evidence.
Accepting the aforesaid evidence, the trial Court companyvicted and sentenced the accused as already mentioned above.
On 28th September, 1995, PW 1 PW 2 had gone to the latters ex employer, a factory owner DW.1 Mohd.
The report of the Laboratory revealed the presence of semen on the vaginal swabs as well as on the salwar.
This witness testified that there was numberoccasion for PW.2 to have companye to the factory as numberpayment was due to him on any account.
He has accordingly pointed out that the defence story projected by DW.1 Mohd.
As per the prosecution story PW.1, the prosecutrix, and her husband, PW 2 Dinesh Mishra who was a rickshaw puller by profession, had companye to Delhi along with her children two months prior to the occurrence.
The matter is before us at the instance of the accused by way of special leave.
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.
Zaki and numberreceipt relating to any earlier payment to PW.2 had been produced by him, his testimony was number acceptable, the more so, as the factory was a small one and Mohd.
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 numberevidence 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 numberhing to suggest that he was incapable of performing sexual intercourse.
PW.2 returned a short while later and she narrated the entire story to him.
We also see from the orders passed by this Court from time to time and particularly the Order of 25th October, 2004 that the companynsel 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.
Significantly also, the semen found was number companyrelated to the appellant as his blood samples had number been taken.
Zaki, to recover some money that was due to him.
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.
In this background the evidence of the defence witness, Mohd.
The judgment of the trial Court was affirmed by the High Court in appeal.
