Luchhman @ Kalia vs The State (Nct Of Delhi)
2007 Latest Caselaw 460 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 542 of 2003 seeks to challenge the judgment dated 26.05.2003 of the Additional Sessions Judge, Delhi, in Sessions Case No. 103 of 1998, FIR No. 555 of 1998, registered at Police Station Sultanpuri, vide which order and judgment, learned Judge has held the appellant guilty under Section 376 IPC, as also under Section 363 IPC and Section 323 IPC and further vide order dated 30.05.2003 has sentenced the appellant to undergo imprisonment for life for commission of the crime under Section 376 IPC together with a fine of Rs. 500/- (rupees five hundred) and in default further Simple Imprisonment for two months. He was also sentenced to undergo Rigorous Imprisonment for three years under Section 363 IPC and fine of Rs. 100/- (rupees one hundred) and in default further Simple Imprisonment for 15 days. He was also sentenced to undergo Rigorous Imprisonment for three months for commission of offence under Section 323 IPC. All the sentences were directed to run concurrently.

2. The brief facts of the case as have been noted by learned Additional Sessions Judge are as follows:

that on 23.8.98 Smt. Guddo lodged a report at about 1.00 p.m. that her daughter poonam aged 5 years was missing since 1 p.m. Bhim Singh informed her that he had seen her daughter Poonam with Kaliya r/o E-3/199, Sultanpuri. She expressed the suspicion that Kaliya had kidnapped her daughter. On her statement, formal FIR under Section 363 IPC was recorded. Investigation was handed over to SI Dharam Parkash. During investigation, he was informed by the SHO Sultanpuri that the accused was apprehended by the police of police station Moti Nagar and the victim was admitted in DDU Hospital. He went to the Police Station Moti Nagar and recorded the statement of the witnesses. Accused was arrested. His personal search was conducted vide memo Ex. PW16/A. He got the accused medically examined from DDU Hospital. Statement of the victim was recorded. During investigation, pullandas were deposited in the malkhana and after completing investigation, challan was filed in the court.

3. Prosecution to bring home the guilt of the accused examined 16 witnesses. Of these PW-1 is HC Suresh Kumar who recorded the DD No. 21-A and FIR Ex. PW 1/A. PW-2 is Poonam, the victim. She has in nutshell stated the prosecution case in as much as that the appellant is her uncle and while she was going to her Bua'a house, he took her in a railway coach. He removed her underwear and inserted his male organ in her private part. She felt pain and raised an alarm. The police came and apprehended the accused/appellant. In cross-examination, she deposes that the accused removed his trouser and she felt pain. The accused also removed her Baali. She stated that she was not tutored by her Bua and that blood had oozed from her private part. PW-3 is Smt. Guddo, the complainant while PW-4 is Smt. Bhagwanti who was tendered for cross- examination.

4. From the statement of the prosecutrix as also coupled with the statement of PW-13, Dr. Sanjay, who proved the MLC of the accused and PW-6, Dr. Anupam, who conducted the gynae examination of the victim, we have no manner of doubt that the prosecution has been able to bring home the guilt of the accused. The trial court, on complete analysis of the evidence placed before, had examined the same and arrived at the conclusion that there is no escape for the accused from the crime. Consequently, we hold that there is no error in judgment of the trial court in assessing the case.

5. Learned Counsel for the appellant has in all fairness submitted that he does not wish to challenge the conviction on merits but has chosen to argue only on the question of sentence. Learned Counsel submits that various courts at various times under similar circumstances have reduced the sentence to ten years imprisonment instead of life. He submits that this Court should exercise its discretion in favor of the accused since the accused has impeccable antecedents; that he is a first offender and has maintained a clean record while in jail. The appellant has already undergone eight years of incarceration without any complaint. Learned Counsel has drawn our attention to judgment in Suresh v. State Delhi High Court which has deemed it proper to modify the sentence to ten years Rigorous Imprisonment under Section 376(2) IPC on grounds that convict was a first time offender and had clean past antecedents. Learned Counsel also refers to judgment in Zamir Ahmed v. The State 1996 Crl. L.J. 2354 Delhi High Court where the Division Bench of this Court has taken more or less the same view. Another judgment relied upon by the learned Counsel is Hori Lal v. State (NCT of Delhi) 123 (2005) Delhi Law Times 506 (DB) Delhi High Court where the victim was a seven years old girl, yet the sentence was reduced from life to ten years.

6. Learned Counsel for the State, on the other hand, contends that this is a fit case where sentence ought not to be reduced since the relationship of the appellant with the child was in the nature of a fiduciary one. He refers to a judgment of the Supreme Court in State of Himachal Pradesh v. Asha Ram 2005 X AD (S.C.) 255, where the Supreme Court, in a case of a father raping his daughter, has enhanced the sentence to life.

7. We have heard learned Counsel for the parties on the question of sentence and have gone through many judgments cited before us, in particular, those of Division Bench of this Court as also the Supreme Court. Considering the fact that the appellant herein is a married man with family responsibilities and taking into consideration that the appellant is a first offender and that we have no adverse report against him during his jail tenure, we deem it proper and in the interest of justice to modify the sentence of imprisonment under Section 376(2)(f) IPC from life to 12 (twelve) years Rigorous Imprisonment. The fine and sentences on another counts are maintained. The sentences of imprisonment to run concurrently. With the above directions, Criminal Appeal No. 542/2003 stands disposed of.