Delhi High Court
Khem Chand vs State Of Delhi on 5 July, 2008
Author: Manmohan Sarin
* HIGH COURT OF DELHI
% Date of decision: July 7th, 2008
+ Crl.A.No. 5/2000
Khem Chand ..Appellant
through
Mr. Vijay Kumar Sharma, Advocate
Versus
State of Delhi ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
2. Crl.A.No. 740/2001
Om Prakash ..Appellant
through
Mr. Anurag Jain, Advocate
Versus
State ..Respondent
through
Mr.Sunil Sharma, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
3. Crl.A.No. 813/2001
Sant Ram @ Dada ..Appellant
through
Mr. K.B. Andley, Sr. Advocate with
Mr.M.L. Yadav, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
4. Crl.A.No. 719/2002
Sadhu Ram ..Appellant
through
Mr. Sumit Verma, Advocate
Versus
State ..Respondent
Crl.(A) No. 5 of 2000 & connected matters Page No.1 of 56
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
5. Crl.A.No. 816/2002
Ram Din ..Appellant
through
Mr. Anurag Jain, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
6. Crl.A.No. 673/2002
Ram Chander ..Appellant
through
Mr. Rajesh Mahajan, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
7. Crl.A.No. 126/2003
Kewal Singh ..Appellant
through
Mr. V.K. Raina, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
8. Crl.A.No. 541/2003
Bishamber ..Appellant
through
Ms. Anu Narula, Advocate
Versus
Crl.(A) No. 5 of 2000 & connected matters Page No.2 of 56
State ..Respondent
through
Mr.Sunil Sharma, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
9. Crl.A.No. 765/2003
Lal Mohd. ..Appellant
through
Mr. Sumit Verma, Advocate
Versus
State ..Respondent
through
Mr.Sunil Sharma, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
10. Crl.A.No. 173/2004
Ram Avadh ..Appellant
through
Mr. V.K. Raina, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
11. Crl.A.No. 89/2006
Santosh Kumar ..Appellant
through
Mr. V.K. Raina, Advocate
Versus
State ..Respondent
through
Mr.Ravinder Chadha, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
12. Crl.A.No. 141/2006
Rattan Pal @ Monu ..Appellant
through
Mr. R.K. Srivastava, Advocate
Crl.(A) No. 5 of 2000 & connected matters Page No.3 of 56
Versus
State ..Respondent
through
Mr.Sunil Sharma, Advocate
Mr. Siddharth Luthra, Sr.Adv.Amicus Curiae
with Ms. Rajni Gupta, Advocate
Coram :
* Hon'ble Mr.Justice Manmohan Sarin
Hon'ble Mr.Justice S.L. Bhayana
(1) Whether reporters of local paper may be
allowed to see the judgment? Yes
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
Manmohan Sarin, J.
1. By this common judgment, abovementioned twelve criminal appeals
are being decided since a common question regarding the grant of reprieve,
if any, in the sentence of life imprisonment for conviction for child rape
arises in these appeals. This is apart from the substantive challenge to the
conviction on merits in the appeals which has been dealt with individually
in each appeal. The claim for reprieve in sentence is either based on plea
of the case meriting a lesser sentence than life, or reprieve based on post
conviction conduct.
2. An act of child rape is a gruesome and abhorring act. It leaves a
permanent scar on the personality of the child, inhibiting growth and
development. It instils a feeling of fear, insecurity and a brooding sense of
shame and guilt for no fault of the child victim. An author has aptly
narrated the inner turmoil of victims and repeat victims of sex abuse or
child rape in the following words:-
"Lost Innocence"
Looking back on a time and place
Seeing a child‟s innocent face
Knowing that things aren‟t as they appear
Crl.(A) No. 5 of 2000 & connected matters Page No.4 of 56
For inside she cries silent tears
Deep inside she is filled with pain
She feels dirty and full of shame
Innocence lost at a very young age
Locked this child in a pain filled cage
There is no freedom or escape
From the fact this child was raped
While the guilty man is roaming free
This child is sentenced to eternity
Eternity locked away with all this shame
She can‟t help but feel that she was to blame
Even though common sense says it was not her fault
She can‟t seem to help from having these thoughts
What if‟s keep running through her mind
She keeps going back to those moments in time
If there isn‟t something different she could have done
Why didn‟t she scream or at least try to run
Fear kept her frozen to the spot
While this grown man did what he should have not
Shame and fear made her keep the silence
Kept her telling anyone about the violence
The thing that is shocking beyond belief
Is that this child could not get any relief
The same thing happened again and again
The first one was just how it began
More than one man did his worst
None of them caring about the child they hurt
After the first time was it easy to tell
Was it her pain and shame they could smell
With every touch a part of her died
Now she is in a prison that has no gate
Every one of them sealing her fate
3. The penological goal and purpose of sentence is not only deterrent
but also correctional and reformative. The determination and awarding of
adequate sentence commensurate with the gravity of the offence is a
judicial obligation. Cases of rape especially child rape have to be dealt with
a measure of sensitivity minimizing the trauma of child post incident and
during the trial, effective counseling and reassurance is required.
The sentencing policy and the approach to be adopted by the Courts,
therefore, aims to bring an element of certainty and predictability to the
extent possible in matters of sentencing, while recognizing that there
cannot be a straitjacket formula.
4. For the rape of a minor, i.e. less than 12 years of age, the statute
provides for sentence up to life imprisonment with minimum sentence of 10
Crl.(A) No. 5 of 2000 & connected matters Page No.5 of 56
years. It is also reckoned that imprisonment for life is not 14 years or 20
years but remainder of natural life as held by the Supreme Court in
"Mohammed Munna Vs. UOI" reported at 2005 (7) SCC 417.
The exercise of judicial discretion in the choice of sentence between
life imprisonment and minimum sentence of 10 years is based on several
factors.
5. There is judicial recognition now to take into account the post
conviction conduct of the accused in jail, while considering the case for
reprieve in the sentence awarded. Reference may be made to "Tapas
Kumar Dutta Vs. State of Bihar" reported at 1997 (10) SCC 382 and "T.
Gurumurthy Vs. State" reported at 2005 (10) SCC 208. Conduct in jail
whether the convict has gone in for higher education or not, participates
and performs duties assigned, adapts to practice of Vipasna or Meditation,
are among other factors suggestive of penitence and reformation. The
above coupled with good conduct in jail, which does not disclose any
propensity towards crime or violence are factors which may be considered
for possible reprieve in sentence, even if conviction is upheld in appeal.
6. Learned Amicus Curiae has brought to our attention the recent trends
and developments in other jurisdictions, namely, USA, UK and Canada on
sentencing policy and rehabilitation of sexual offenders. We find that the
said studies and research work does provide an interesting insight into
sentencing, recidivism and rehabilitation of sexual offenders. However, in
the absence of institutional infrastructure and well monitored and controlled
rehabilitation programmes by established institutions, the said models
cannot be adapted in our ground realities, where reformation/rehabilitation
has to come from acceptance within the family or small knit Biradari i.e.,
the extended family. We have also examined the aspect of directions that
can be issued to a convict receiving reprieve in sentence and the restrictions
that can be imposed on the convict even after release for the protection of
Crl.(A) No. 5 of 2000 & connected matters Page No.6 of 56
the victim of rape, with or without the consent of the offender.
7. Before proceeding with the evaluation of the 12 appeals on merits,
the principles and factors emerging from judicial pronouncements, which
are relevant in the matter of choice of sentence or reprieve in the sentence
awarded are enumerated below for facility of reference. These are the
factors which are, or may be taken into account by the Court while
assessing as to what could be an appropriate sentence in a given case.
i. Criminal and the crime are both important for the purposes of
sentence. Bachan Singh Vs. State of Punjab (1980) 2 SCC 684.
ii. Manner of commission of the crime being with meticulous
planning or one on the spur of the moment;
iii. Violence, if any, accompanying the crime whether injuries
suffered were serious and required extensive treatment or
have caused any permanent damage to the child bearing
capacity or otherwise
iv. Whether the offender or accused was in a position of fiduciary
trust or exploited a social or family relationship;
v. State of the victim, impact of the crime on the victim,.
vi. The antecedents of the accused, his age, whether a first time
offender or repeat offender, possibility of recidivism.
vii. Social backwardness or offender being a poor, illiterate
labourer not found to be adequate reason by Courts. (State of
M.P Vs Munna Choubey & anr 2005(2)SCC 710 and State of
M.P Vs. Babbu Barkare @ Dalap Singh (2005) 5 SCC 413.
viii. Passage of time since offence committed by itself considered
inadequate reasons for reprieve. (Urmila (minor) Vs Raju &
Anr., (2005) 12 SCC 366.
ix. Rape victim‟s marriage or rehabilitation may be considered as a
mitigating factor.
x. The Supreme Court in a number of decisions Dinesh @ Buddha
Crl.(A) No. 5 of 2000 & connected matters Page No.7 of 56
Vs State of Rajasthan (2006) 3 SCC 771, State of Karnataka Vs
Krishnappa (2000) 4 SCC 75, Bantu @ Naresh Giri Vs State of
M.P (2001) 9 SCC 615 and State of M.P Vs Santosh Kumar
(2006) 6 SCC 1 where the victims were below the age of 12
years and rape had also been committed with some injuries,
has chosen to uphold the award of minimum sentence.
8. One of us (Manmohan Sarin, J.) in Sheikh Falsar Vs. State
(Crl.A.154/2005) reduced the sentence from life imprisonment to 10 years
though the victim had suffered tear of the hymen, second degree perennial
tear resulting in stitches being required for vagina, following the judgment
of the Supreme Court in the State of Karnataka Vs. Krishnappa (supra) and
considering that accused was a first time offender and this was a solitary
offence, pleas of intoxication or the accused belonging to the weaker section
of the society were not accepted. The Supreme Court in State of Karnataka
Vs. Krishnappa (supra) also noted the rationale propounded by Kautilya of
„just punishment‟. Kautilya‟s philosophy was "whoever imposes severe
punishment becomes repulsive to people while he who awards mild
punishment becomes contemptible. The ruler just with the rod is honoured.
When deserved punishment is given, it endows the subjects with spiritual
good, material well being and pleasures of the senses." This philosophy is
woven into our statute and our jurisprudence and it is the duty of those who
administer the law to bear this in mind.
9. Accordingly, while determining the sentence in appeals under
consideration, we have considered the aspects as noted above and in
particular whether the accused was a first time offender or a repeat
offender, whether offence was accompanied or committed with violence,
nature of injuries sustained, whether any permanent physical damage
caused, did it involve betrayal of trust, possibility of recidivism i.e repeat
offending or there was possibility of rehabilitation/ readjustment within the
community, post conviction conduct of the accused displaying penitence or
Crl.(A) No. 5 of 2000 & connected matters Page No.8 of 56
propensity to crime are few of the factors which have been considered.
Cases where rape was committed more than once or over sustained periods
or cases where there was no possibility of rehabilitation or amalgamation or
adjustment in society, have not merited a reprieve in sentence.
The brief facts of each case are as under:
1. Crl.A. 5/2000 (Khem Chand Vs. State)
Appellant Khem Chand was convicted vide judgment dated 26th
November, 1999 for rape of his daughter „M‟ aged about 11 years. Vide
orders dated 4th December, 1999, he was sentenced to life imprisonment.
He was convicted and sentenced to undergo RI for 10 years and a fine of
Rs.2000/- for offence under section 377 IPC committed on his daughter‟s
friend `D‟ again a minor of 11 to 12 years of age and a student of class 5.
In default of payment of fine, he was to undergo RI for one year. He was
sentenced to RI for two years for offence under section 354 IPC.
The unfortunate minor girl 'M' is the eldest child of the convict.
She lost her mother some time in the year 1997. She became the victim of
the sexual perversion and exploitation of her father, the appellant,
immediately following the demise of her mother. Protests invited physical
beatings and she bore the agony for months together. The matter came to
light when the appellant sought to sexually exploit the friend of his daughter
'D', who disclosed it to her mother. The appellant pleads not guilty. The
defence set up by the appellant is that Laksha Nand, Triveni and Sharda
Devi, residing in the neighbourhood, wanted to grab his property and had
conspired and induced the prosecutrix 'M' to make false statement. It is
stated that he had protested to the visits of Gollu, brother-in-law of Laksha
Nand to their house and latter also joined the conspiracy to falsely implicate
him. Appellant also urged that 'M' and 'D' were not reliable witnesses. The
defence that prosecutrix `M‟ appellant‟s own daughter would conspire with
neighbours to falsely implicate him in the offence to further the alleged
Crl.(A) No. 5 of 2000 & connected matters Page No.9 of 56
grabbing of his property does not inspire any confidence.
The Trial Judge found the evidence of 'M' to be reliable and credit
worthy. It has come in her evidence that the appellant had been raping her
from the 6th day of the death of her mother. Certain discrepancies
regarding the number of times, the appellant had forced sex, are sought to
be urged. These are normally errors of memory and observation, due to
passage of time and are not of any material consequence. The medical
evidence duly corroborated the version of 'M'. Her hymen was found to be
ruptured. Doctor reported history of physical violence and the fact that the
girl had not reached the stage of menarche. The prosecutrix 'M' deposed
that the appellant had also outraged the modesty of her friend 'D' and had
oral sex with the latter. Prosecution had set up the case of 'D' being raped
but in the statement before the Court, it was a commission of unnatural
offence against her person and oral sex. In these circumstances, the
learned Sessions Judge invoking the provisions of Section 421 and 464 of
Cr.PC, convicted the appellant under Section 354 and 377 IPC.
Mr. Sumit Verma, learned counsel for the appellant, urged that
the conviction under Section 377 of the IPC was illegal and not maintainable
in the prosecution under section 376 IPC. The offence as well as defence
under section 377 IPC would be distinct. Besides the factum of oral sex
would not constitute an offence within the ambit of Section 377 of IPC. He
submitted that in these circumstances sub-Section (2) of Section 464 Cr.PC
could not be invoked since Sections 376 and 377 IPC were distinct offences.
Learned counsel for the appellant relied on "Shamnsaheb M. Multani Vs.
State of Karnataka" reported at AIR 2001 SC 921. He submitted that
conviction under Section 377 IPC was not supported by any evidence.
Learned Amicus Curiae also supported the appellant on the aspect of
conviction under Section 377 IPC not being maintainable. Learned counsel
for the appellant very candidly and fairly submitted that there was
overwhelming evidence as regards the charge under Section 376 IPC was
Crl.(A) No. 5 of 2000 & connected matters Page No.10 of 56
concerned. He submitted that the appellant, no doubt, was accused of a
ghastly offence, yet penitence and repentance ought to be part of our
ethos. Considering that the appellant had already undergone about 10 years
of imprisonment, he deserves some reprieve. He submitted that appellant
and his family had suffered a lot. Further considering report from Jail
regarding good conduct and behaviour and not exhibiting any propensity
towards crime and taking up Vipasna and Yoga lessons, the Court may
consider reduction of sentence in his term.
There is merit in the contention of the appellant that the
charge framed against the appellant was under Section 376 IPC for raping
'D' while the conviction has been made under Section 377 and 354 IPC. It
is correct that the ingredients of the offence under Section 377 IPC are not
even satisfied assuming the evidence as led against the appellant is to be
accepted. In these circumstances, we maintain the conviction of the
appellant in respect of the offence under Section 376 IPC for raping 'M'. We
also hold that the charge of raping 'D', friend of 'M' is not established.
Neither in these circumstances can the conviction be made by invoking
provision of sub-Section (2) of Section 464 Cr.P.C as these operate in
different fields. The conviction of the appellant under Section 377 IPC in
relation to offences against 'D' is set aside while maintaining the conviction
under Section 354 IPC.
The conviction of the appellant has put the entire family into
disarray. 'M' and her younger sister were sent to the Remand Homes, while
her brother Sonu, who had been put in an Adult Care Home, ran away from
the said Home and was found working in Bagpat in U.P. From time to time
in the Criminal Appeal, directions were given to ensure the well being and
education of the victim and her sister. Pursuant to the directions from the
court, the Government of NCT sanctioned and deposited Rs.30,000/- in the
form of FDR with 50% of the interest accruing monthly being available for
the upkeep and day to day expenses of the two sisters.
Crl.(A) No. 5 of 2000 & connected matters Page No.11 of 56
The appellant in jail has been carrying on various works in
langar and carpentry work in the kitchen of the Jail. The post-conviction
report is stated to be satisfactory and he has shown no propensity towards
crime. He is participating in Yoga, Vipasna and meditation.
Mr.Sunil Sharma, learned counsel for the State, on the other
hand, vehemently opposes the plea of leniency or reprieve in sentence. He
submits that considering the depravity and circumstances of the offence,
the sentence prescribed even in the Statute was less. He submits that the
appellant committed the offence on his helpless daughter on the 6th day of
the demise of his wife. It shows a devilish and depraved mind. His sexual
urge was not satisfied despite repeated sex with his daughter and he sought
to exploit her friend. This was hardly a case where reformation ought to be
tried.
We find merit in the submission of learned counsel for the
State that the appellant does not deserve any clemency or reprieve in
sentence. Appellant was a matured man. He sexually exploited his
daughter and committed rape on her immediately on the sixth day following
the demise of his wife. It was not a solitary incident but he continued with
his depravity repeatedly. His sexual urge was not satisfied with his daughter
and he sought to exploit her friend. Appellant, in these circumstances,
despite his good conduct in jail following the conviction does not deserve
any reprieve. We cannot lose sight of the fact that as a result of this
ghastly act, not only the life of the rape victim was ruined but also the
entire family was put in disarray and the son went away from home, while
the younger daughter was put in remand home. As a result of directions
given by this court, Government of NCT of Delhi has deposited Rs.30,000/-
which have been kept in a fixed deposit. From this interest income, part of
the expenses of the two sisters, who are now sought to be supported by
their maternal grand parents are met. There is still considerable resentment
and understandably so between `M‟ and the appellant and she does not
Crl.(A) No. 5 of 2000 & connected matters Page No.12 of 56
want to see the face of the appellant.
In view of the foregoing discussion, we maintain the conviction
and dismiss the appeal
2. Crl.A. 740/2001 (Om Prakash Vs. State)
Appellant Om Prakash, a Constable of Delhi Police, was
convicted vide judgment dated 11.9.2001 for the rape and outraging the
modesty of a 3½ years old girl 'V'. He was sentenced to undergo life
imprisonment for the offence under Section 376 IPC. Additionally, a fine of
Rs.50,000/- was to be paid to the victim as compensation, failing which the
appellant was to undergo further RI for nine months. He was also
sentenced to six months' RI for the offence under Section 354 IPC. Both
the sentences to run concurrently.
As per the prosecution, on 11.12.1995, the appellant took the
victim on the pretext of leaving her to school. He took her near a tube well
in village Shikarpur and raped her. The victim had bled. He also inserted
his penis into the mouth of the victim. The Judge has recorded the
obstructive and obtrusive behaviour of the accused resulting in the victim
coming to the Court several times and returning without giving evidence.
PW-1 to PW-21 were examined. Appellant denied the entire incident. In
fact, he got himself admitted to a hospital for about 10 days. He was
identified by the victim on his return. Appellant, apart from denying the
incident, claimed that he was falsely implicated on account of enmity in
relation to the property illegally possessed by the complainant. The Trial
Judge after analyzing the evidence, reached the conclusion that the
appellant was not on duty and the time of commission of the offence i.e
between 8.30 a.m. and 9.15 a.m. Further, he was taken to the hospital at
about 9.30 a.m. or 10.00 a.m.
The factum of rape on the 3½ old girl is established by medical
examination. There was heavy bleeding from vagina. There was a second
Crl.(A) No. 5 of 2000 & connected matters Page No.13 of 56
degree perennial tear in posterior vaginal wall. Hymen was totally torn.
Vagina was allowing/admitting three fingers. Half unit blood was arranged
for transfusion. Stitches were required under general anaesthesia. MLC
recorded that it was suggestive of sexual intercourse by a grown up person.
The prosecutrix remained hospitalized for 11 days. The suggestion by the
defence of receiving injuries as a result of a fall are preposterous to say the
least. It is the prosecution‟s case that the appellant did not permit the
recording of evidence of his younger brother, who was likely to depose
against him during his life time. The prosecutrix has clearly deposed that
the accused lifted her and covered her with a 'Khes' and thereafter, he took
her to a tube well. The Trial Court has reproduced in vernacular, the act as
perpetrated by the appellant on her. She has stated that he put firstly his
penis into her mouth and then in her vagina and she started weeping and
got the sensation of going for the call of nature. She also started bleeding
and felt giddy. The statement is clear, explicit. It leaves no manner of
doubt. It is not necessary for us to delve on the merits of the appeal as Mr.
Anurag Jain, learned counsel for the appellant, appearing for Mr. Sandeep
Sethi, Senior Advocate, submits that he has instructions to press for
clemency for appellant rather than pressing the appeal on merits. The
appellant is stated to be 46 years old. He has been in incarceration since
December, 1995, i.e., for nearly 11 years & 9 months. He got married in
1983 and has two children from the wedlock, a son, aged 21 years and a
daughter who has since been married. His wife remains unwell. His
conduct in Jail has been satisfactory. He was suffering from hernia at the
time of the incident. He has been working in the Jail in the tailoring section
and has collected about Rs.3,000/-. He is a matriculate but did not advance
his education in Jail. He is presently undergoing Vipasana. Nothing
adverse has been recorded against him in Jail. The victim 'V' is stated to be
now 15 years of age and studying in Class 10th in a school in Meerut with
her maternal aunt. She is reluctant to come back to her house at the native
Crl.(A) No. 5 of 2000 & connected matters Page No.14 of 56
place, i.e. the village Shikarpur due to apprehended humiliation and
taunting by villagers. The house of the victim and the appellant are within
the same street. The father of the victim is a driver in DTC. Her brother is
also studying in Class 12th and the mother is a housewife. She plans to
study in Meerut further.
During the course of hearing of this appeal, the appellant had
indicated that he was willing to make the payment of Rs.50,000/- as fine
and prayed for life sentence to be reduced. Mr. Sunil Sharma, counsel for
the State, points out that the offence had been committed by the appellant,
who was a member of the law enforcing agency, i.e., a constable in Delhi
Police. It was done in a brutal manner which necessitated hospitalization of
3½ years old child for 11 days. He further submitted that if the appellant
was to be set free, the victim would suffer nightmare as the house of the
appellant and the victim is in the same village. Learned counsel for the
appellant submits that the appellant himself would shift out from the village
as they did not themselves wish to face the ordeal of the villagers. Om
Prakash, the appellant, had filed in Court an affidavit dated 19.4.2007 firstly
stating that he is ready and willing to deposit the fine of Rs.50,000/-
imposed by the Trial Court and he has no objection to its release in favour
of the complainant as compensation. Further appellant would shift his
residence to property No.10-A, admeasuring 189 sq. yds. situated in
revenue estate of Village Hastsal, Sai Enclave, Vikas Nagar, New Delhi-
110059, which is owned by the appellant's father. Further, after his
release, the deponent shall not reside or visit Village Shikarpur and will shift
to the aforesaid address along with his family members. He has also
undertaken not to contact or influence the victim or her family members in
any manner whatsoever.
Statement of the appellant on oath, undertaking to the court
to abide by the contents of the affidavit, has been recorded. On a
consideration of the aggravating as well as mitigating factors, it would be
Crl.(A) No. 5 of 2000 & connected matters Page No.15 of 56
seen that appellant who was a member of the Police Force i.e Law Enforcing
Agency has himself been the perpetrator of a ghastly crime committed in a
brutal manner on a helpless innocent child of three and half years. Rape
was committed with violence leaving the child with vaginal tears and
admitting three fingers which necessitated repair of the tears under general
anaesthesia and hospitalization for 11 days. The conduct of the appellant
during trial was also obtrusive, blatantly defiant subjecting the child to
grueling cross-examination and prolonged presence during trial. As noted
earlier, appellant has now, not pressed the appeal on merits and prayed for
clemency. Appellant is around 46 years of age and is a family man having
a wife, married daughter and a son. His father and brothers are also alive.
His family members have indicated their willingness to absorb him in the
family fold. Appellant is a first time offender and this was his first brush
with law. Appellant‟s conduct in jail has been satisfactory. He has been
taking lessons in Vipasana and working in Tailoring section and has also
collected a sum of Rs.3000/- . He has been abiding the jail discipline.
Appellant has also deposited Rs.50,000/- imposed as fine and has no
objection to the said amount being released to the victim.
One of the concerns and apprehensions expressed by the
counsel for the State was with regard to the possible humiliation and
embarrassment to be faced by the victim in case of release of the appellant
if he resides in the same village. Appellant has undertaken to the court to
shift along with his family members to his family house and reside where his
family resides and not to reside in their house in Village Shikarpur or its
vicinity thereof. He has also undertaken not to contact or influence the
victim or her family members in any manner. He has undertaken to
further abide by such terms and conditions as may be imposed by the court
while granting him reprieve in sentence.
We are also of the view that victim also cannot be made to stay
forever in Meerut with maternal aunt. She is presently in Class 10th and
Crl.(A) No. 5 of 2000 & connected matters Page No.16 of 56
would be completing her schooling. It would be desirable and conducive
for her growth that she may return to her parents and her home without
having any fear or inhibition of any harassment from the appellant or his
family.
We, accordingly, accept the undertaking as given by the
appellant and direct that appellant shall be bound by the contents of the
affidavit and will not reside in village Shikarpur. In view of the foregoing
undertaking and the factors as noted by us hereinbefore, we are of the
opinion that ends of justice would be met if the appellant‟s sentence is
reduced to 12 years RI exclusive of any period of remission i.e net term of
12 years. The amount of Rs.50,000/- deposited by the appellant be also
kept in a fixed deposit for a period of three years drawn in favour of the
victim at UCO Bank, Delhi High Court Branch, New Delhi and the FDR be
handed over to the victim.
We, accordingly, uphold the conviction but reduce the sentence
to a net term of 12 years of RI exclusive of remissions.
3. Crl.A. 813/2001 (Sant Ram @ Dada Vs. State)
Appellant Sant Ram alias Dada vide judgment dated 11th
October, 2001 was convicted for the offence under Section 376 IPC and vide
orders dated 15th October, 2001 was sentenced to undergo rigorous
imprisonment for life and a fine of Rs.5,000/- and in default, to further
undergo rigorous imprisonment for one year.
The prosecution case is that Sant Ram, a peon, working in
PGDAV College, was living in the jhuggis behind the college. Another
employee of the college Ram Saran, who was also the friend of the
appellant, used to live in the jhuggi nearby. Ram Saran's wife and children
had gone to the village and considering the staggered duty time, Ram Saran
used to leave his eight year old daughter 'M' with Sant Ram, the appellant,
Crl.(A) No. 5 of 2000 & connected matters Page No.17 of 56
till he returns from duty. On 5th or 6th November, as Ram Saran was to go
to the Railway Station, he left his daughter at the jhuggi of the appellant
with the latter. Sant Ram in whom paternal trust and faith was reposed
and who had the protective custody, became the perpetrator of the crime
and defiled the minor girl `M‟ allowing his lustful ploy. 'M' did not disclose
the crime to her father that night but on the next day, she disclosed about
her ordeal. It is also a part of record that Sant Ram inflicted injuries on
himself for which he was separately tried for attempting suicide but
acquitted as informed by appellant's counsel. On medical examination,
Sant Ram was found capable of sexual intercourse. The prosecutrix 'M'
also disclosed of rape by Sant Ram on an earlier occasion. Medical
examination of 'M' duly supports the prosecution version. The MLC records
her age as eight years, being brought with history of sexual assault by her
neighbour, whom she called 'Dada'. The external examination of genitals
showed inflammation and raw area on inner surface of right labia,
hyperemsia and tenderness on private parts, vaginal opening was inflamed.
The victim had also complained of anal intercourse. The examination of
anus showed two fissures at 12 o'clock and 7 o'clock position. The anus
was found inflamed and tender. The underwear seized from the Appellant
had semen and blood stains of human origin. Semen stains were also found
on frock and underwear of „M‟. The medical examination confirmed vaginal
and anal intercourse. The prosecutrix duly identified the appellant and had
even named him before the Doctor as the rapist.
The appellant, of course, claims to have been falsely implicated
on account of the loan of Rs.10,000 (Rs. Ten thousand ) that he had given
to Ram Saran for one month, which the latter had failed to return. On
asking for return of the loan, Ram Saran gave threats that he would have
appellant sent to jail.
Appellant thus claims to have been falsely implicated. The
defence of the appellant was found to be false. The appellant's bank
Crl.(A) No. 5 of 2000 & connected matters Page No.18 of 56
account showed that he had at no point of time, withdrawn any amount
more than Rs.5,000/- and had small balances in his account. Therefore, the
story of giving loan of Rs.10,000/- does not appear to be credible. Learned
counsel for the appellant points out that the finding by the Sessions Judge
that the medical examination of the prosecutrix made it abundantly clear
that she was subjected to anal intercourse as well as vaginal intercourse by
the appellant, does not advance the matter further. The Judge has found
him guilty of the charge only under Section 376 IPC. Even though the
evidence adverse to the appellant had been put to him under Section 313
Cr.PC including the evidence relating to the fissures being found in the anus
at 12 o'clock and 7 o'clock position, the charge itself has been framed only
under Section 376 IPC and was not amended. Learned senior counsel Mr.
K.B. Andley submits, in these circumstances, that the Court cannot exercise
jurisdiction under Section 221 Cr.PC or under Section 364 Cr.PC as it is
hardly a case of being remanded for fresh trial when the appellant had
already undergone nearly eight years of sentence. Moreover, since the
appellant having not been charged under Section 377 IPC or convicted
thereunder, the findings or evidence in respect thereof cannot be taken note
of.
As regards the appellant's defence of being falsely implicated
on account of the failure of father of the prosecutrix to return the loan of
Rs.10,000/-, as noticed earlier, the bank account and the pass book of the
appellant do not corroborate to having given loan of Rs.10,000/-. There is
no documentation or receipt produced in support of the same. It was only
the appellant‟s statement under Section 313 Cr.P.C. Learned counsel for
the appellant Mr. Yadav also sought to urge that the evidence of the
prosecutrix was highly unreliable inasmuch as she claims that when the
appellant earlier made an abortive attempt to rape her, she did not wake up
her father and tell him about the incident.
We are in agreement with the analysis and findings of guilt of
Crl.(A) No. 5 of 2000 & connected matters Page No.19 of 56
the appellant under section 376 IPC reached by the learned trial court.
The said conclusion is inescapable based on the statement of the
prosecutrix duly supported by the medical evidence on record as noted
above. We have, therefore, no hesitation in confirming the conviction of
the appellant. Apart from the plea of the appellant being falsely implicated
as part of the vendetta for non return of the loan, there is no other ground
which has been urged by the appellant. As noted above, this plea is devoid
of substantce.
Let us consider the appellant‟s plea for clemency and reprieve
in sentence. It is urged that appellant is a family man and has four
daughters and one son. All of them are married. Although three
daughters were married prior to conviction. He has been working as a
gardener in jail.
Appellant has been in incarceration for a period of nine years
and 8 months. He is around 62 years of age. Appellant had undoubtedly
betrayed the trust reposed in him by his friend and neighbour and raped the
8 years old victim. The medical examination indicated two fissures.
Since no charge was framed under section 377 IPC, appellant was not
convicted for the same.
Considering that appellant is a first time offender and has been
a family man especially taking into account his post conviction conduct in
jail wherein he has joined various reformative and rehabilitation
programmes such as Art of Living, Yoga etc, he has been working in jail
langar and has maintained discipline in jail, appellant‟s case may be
considered for reprieve in sentence. Another factor which supports
consideration of reprieve in sentence from life is that appellant is already
about 62 years of age. His family is willing to take him into the family fold.
There is strong case of rehabilitation/reformation based on his post-
conviction conduct and family circumstances.
We are, accordingly, of the view that sentence of the appellant
Crl.(A) No. 5 of 2000 & connected matters Page No.20 of 56
may be reduced to 10 years of actual sentence without remission, with fine
of Rs.5000/-. In case, fine is not paid, he shall further undergo SI for one
year. Fine on realization be paid to the victim.
Delhi Police shall ensure that appellant does not cause any
disturbance or nuisance to the victim or any member of her immediate
family. A report in this regard will be filed by the concerned SHO once in
six months. In case, appellant is found to be causing disturbance or
nuisance to the peaceful living of the victim, police shall be free to proceed
for externment of the appellant from the locality or from the vicinity of the
victim‟s residence under the Delhi Police Act and/or as permissible at Law.
4. Crl.A.No. 719/2002 (Sadhu Ram Vs. State)
Appellant has been sentenced to life imprisonment with a fine of
Rs.10,000/- for the offence under section 376 IPC and in default, further SI
of one year. As per the prosecution's case on 5th January, 2000, prosecutrix
`X' a minor girl of around 8 years went out to ease herself. When she
had not returned for sometime, her mother became uneasy and went to
look out for her. On reaching near DDA park, she heard cries of a girl from
the park behind Durga Mandir. On reaching there, she found that appellant
had closed the mouth of her daughter and removed her underwear and was
committing rape on her. She pushed the appellant away and raised alarm.
Police reached the spot and recorded statement of prosecutrix's mother
and arrested the appellant on the spot. Medical examination of the
prosecutrix was conducted. Appellant was also medically examined and
was found capable of sexual intercourse. Medical report of the prosecutrix
showed discharge of blood from her private parts and fresh second degree
perennial tear and a tear in the posterior part of the hymen. She was
advised stitches on the hymen under local anesthesia. Appellant had been
detained on the spot by a person from public, one Arun. Appellant was
Crl.(A) No. 5 of 2000 & connected matters Page No.21 of 56
duly identified by the prosecutrix `X' and her mother. Apart from
prosecutrix `X' and her mother, other public witnesses corroborated the
case against the appe+llant.
Appellant in his statement under Section 313 Cr.P.C claimed that he
had deposited Rs.40,000/- with the father of the prosecutrix `X' Khem
Chand and when he had gone to demand money from Khem Chand,
Khemchand, offered a cup of tea and after taking tea, he became
unconscious and did not know what happened thereafter. The above story
was not suggested to either Khem Chand, Jasoda or even to the
prosecutrix. The case against the appellant stood duly proved.
We, accordingly, find the appeal to be devoid of merit and maintain
the conviction. At this stage, learned counsel for the appellant Mr.Sumit
Verma prays for clemency for the appellant. He submits that appellant is a
first time offender and has already been in incarceration for about eight and
half years. There is some ambiguity with regard to the age of the
appellant. Nominal roll on record in the file suggest his age to be over 62
years while the judgment of the trial court mentions the age as 45 years.
Considering the post conviction conduct of the appellant in jail wherein he
has not displayed any propensity towards crime or violence and his having
been abiding by the jail discipline, are factors which commend a reprieve in
sentence of the appellant. Appellant has already suffered tragedies in the
death of his wife in 1997 and his son in 1999. Appellant was a vegetable
vendor by profession. He has been working in jail workshop and engaged
in the manufacture of files. However, there is absence of family, which
could have helped in rehabilitation and readjustment.
Considering all the above factors and Appellant‟s age and being a
first time offender, we are of the view that ends of justice would be met in
case appellant is granted reprieve in sentence and reduce the sentence to
10 years without remission with fine of Rs.10,000/- and in case, he fails to
make the payment of fine, he would undergo SI for one year. Ordered
Crl.(A) No. 5 of 2000 & connected matters Page No.22 of 56
accordingly.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
5. Crl.A.No. 816/2002 (Ram Din Vs State)
Appellant Ram Din was convicted for the offence under section 376
IPC vide judgment dated 27th February, 2002 and vide order of the same
date, he was sentenced to life imprisonment with a fine of Rs.10,000/- and
in default, to undergo simple imprisonment for one year. Appellant, a
beldar by profession, has been found guilty of raping minor daughter of his
contractor hereinafter referred to as Proxecutrix `L'. He is around 47
years of age and a widower since 1977. Appellant was living in a hutment
bearing number P-2/257, Sultan Puri, Delhi while proseuctrix `L' was living
in hutment bearing no.P-2/255, Sultan Puri. Appellant asked `L' to bring
some vegetable for him. She replied that none had been cooked.
Thereupon, he dragged her inside and removed her underwear and raped
her. She bled from the vagina and was crying. He gave cloth to wipe it
and she returned to her house and informed her mother of what had
transpired. Father and mother of Prosecutrix `L' reached the appellant's
hut and raised hue and cry. Police was called. Appellant and Prosecutrix
`L' were sent for medical examination. Underwears of Prosecutrix `L' and
the appellant were seized. Lungi of the appellant with blood stains were
also recovered. The date of birth of Prosecutrix `L' was proved as 23rd
January, 1991 making her 9 years old at the time of incident. Prosecutrix
`L' clearly in her statement identified and implicated the appellant. The
factum of rape stands proved by medical report PW 5/B. Fresh tear was
Crl.(A) No. 5 of 2000 & connected matters Page No.23 of 56
seen in the hymen and she was found bleeding from vagina. Underwear of
Prosecutrix `L' was found containing blood group `O' and the same blood
group was also found on the lungi of the appellant. No explanation came
forth from the appellant regarding blood on his lungi. The offence was
committed in a violent manner inasmuch as Prosecutrix `L' remained
hospitalized for 2-3 days.
Appellant did not lead any evidence in defence. In his statement
under section 313 Cr.P.C, he denied incriminating evidence against him and
claimed that he was working with the father of the Prosecutrix `L' who had
not paid him anything but promised to do so at the time of marriage of his
sister and when he demanded money from him, he entered into a fight with
him and instead of paying money, he got him implicated in a case falsely.
A plea that was sought to be raised in the statement under Section 313
Cr.P.C, was not suggested by the appellant either to Brij Pal, father of the
Prosecutrix `L', or to the Prosecutrix `L' or to her mother. It was purely
an afterthought. In the instant case, there is no reason for the Prosecutrix
`L' and her parents to falsely implicate the appellant. Medical evidence
clearly establishes rape. Appellant was apprehended from the spot.
Statement of the Prosecutrix `L' coupled with medical evidence on record
proved the case under section 376 IPC against the appellant. The mere
fact that name of the appellant was not mentioned in the M.L.C could hardly
be of any consequence in the overwhelming incriminating evidence available
against the appellant. We find the appeal to be without any merit and
maintain the conviction.
Mr.Bhupesh Narula, learned counsel for the appellant prays for
clemency for the appellant as he is a migrant from Madhya Pradesh, a
labourer with his wife having expired in 1974. His conduct in jail has been
satisfactory. It was the first offence of the appellant. Counsel further
submits that appellant is an illiterate person and he has been practicing
yoga, meditation and Vipasana in jail. Mr.Narula also submits that appellant
Crl.(A) No. 5 of 2000 & connected matters Page No.24 of 56
does not have the means to make the payment of fine. In these
circumstances, Mr.Narula submits that in appellant's case, minimum
sentence of 10 years would be adequate.
We are not persuaded by the submission that appellant being a
migrant from Madhya Pradesh or illiteracy should be accepted as
extenuating factors. It cannot be overlooked that appellant, being a
matured man of 47 years and a widower has raped the prosecutrix, a minor
girl of 9 years. The offence was committed in a violent manner inasmuch
as prosecutrix remained hospitalized for 2-3 days.
Considering the personal circumstances i.e., demise of Appellant‟s
wife, his claim of being a law abiding citizen except for the present incident
and the post conviction conduct of the appellant in jail who has been
practising Yoga, Meditation and Vipasana and displayed no propensity
towards crime, in our view, ends of justice would be met by reducing
appellant‟s sentence to 10 years RI without remission with the fine of
Rs.10000/- and in default, SI of one year.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
6. Crl.A.No. 673/2002 (Ram Chander Vs. State)
Appellant Ram Chander was convicted vide judgment dated 16th
August, 2001 for offence punishable under Section 376 IPC for the rape of
a minor girl 7-8 years old (hereinafter referred to as Prosecutrix `P') on 31st
May, 1998. Vide order dated 23rd August, 2001, appellant was sentenced
to life imprisonment and a fine of Rs.30,000/-, if realised to be paid to the
Prosecutrix `P' and in default, to further imprisonment of three months.
Crl.(A) No. 5 of 2000 & connected matters Page No.25 of 56
Prosecution case is that appellant a shopkeeper offered tea to Prosecutrix
`P' who was returning after easing herself. Appellant is alleged to have
dragged her inside his shop and then raped her. Prosecutrix `P' felt pain
and cried and thereafter, appellant left her and opened the shutter. She
returned to her house and narrated the incident to her mother after she
found blood at the place of her urination. Prosecutrix `P' accompanied by
her mother was sent to Hindu Rao Hospital for examination. Appellant was
arrested from the spot. Medical examination of prosecutrix was carried out
on 1st June, 1998 with the alleged history of sexual assault by an old man.
Vulva was found smeared with blood. Hymen was torn with a small tear on
forchette posteriorly. There was no bleeding at that time. Human semen
was found on the panty of the Prosecutrix `P' and the underwear of the
appellant. The finding of semen stains of `B' blood group which is the blood
group of the appellant on the panty of the Prosecutrix `P' are significant.
Prosecutrix `P' in her categorical statement clearly described the offending
act performed by the appellant. Appellant in his statement under section
313 Cr.P.C denied the allegation of offering tea to Prosecutrix `P' but
admitted his arrest from the market. Appellant did not lead any evidence
in defence but claimed that he was lying on a takhat at the relevant time in
the market. He claimed that he had a tiff with the mother of the appellant
for using foul language and hence was falsely implicated.
Mr.Rajesh Mahajan, learned counsel for the appellant in support of
the appeal sought to rely on what he termed as several contradictions and
inconsistencies. He submits that Prosecutrix `P' in her statement in court
deposed that her hand and feet were tied but this was not so recorded in
the statement before the police. There is a time gap of over two years in
recording of the statement and that explains such inconsistencies.
Mr.Mahajan further submits that the Prosecutrix `P' in her statement before
the police stated that she did not know the name of the appellant/accused.
Subsequently, she deposed that she did not know name of the accused but
Crl.(A) No. 5 of 2000 & connected matters Page No.26 of 56
her mother knew the name. Counsel further submits that there were
inconsistencies in the statements of P.Ws 1, 2 & 3 who were even otherwise
interested persons and thus appellant was entitled to benefit of doubt. The
main plank of Mr.Mahajan's submission was the medical examination of the
appellant reveals that he did not suffer any injury on his person. Further
the presence of smegma on his penis itself negates any sexual intercourse
within the last 24 hours. He submits that no stains of semen were found
in pubic region. In support of his above submission, he places reliance on
Dr.S.P.Kohli Vs. High Court of Punjab and Haryana AIR 1978 SC 1753. He
also places reliance on Modi's Medical Jurisprudence & Toxicology and State
of Karnataka Vs. Mahabaleshwar Gourya Naik 1993 SCC (Crl.) 180.
While there can be no quarrel with the proposition that presence of
smegma is an indicator of absentism from sexual activity in the last 24
hours or so. However, in the present case, there is overwhelming oral
evidence of the Prosecutrix `P' supported by other medical evidence that a
presumption as is sought to be raised by the appellant, would stand
rebutted with the submission not sustainable. In the instant case, semen
stains of appellant's blood group were found on the panty of Prosecutrix `P'
as well as appellant's own underwear. This is apart from torn hymen and
perennial tear and bleeding from vagina of the Prosecutrix `P'. In view of
the presence of blood on the undergarments and there being no other
explanation of presence of semen stains other than on account of sexual
intercourse, it would be idle, in these circumstances, to contend that
Prosecutrix `P' could have suffered injuries or hymen could have been
ruptured on account of jumping or fall on hard substance. No such
suggestion was given to the Prosecutrix `P'. We are, accordingly, of the
view that there is no merit in the appeal as against the order of conviction.
Mr.Rajesh Mahajan next sought to urge that appellant is around 66
years of age. His wife has expired. He has three daughters. Appellant
claims that one of them is married and other two are of marriageable age.
Crl.(A) No. 5 of 2000 & connected matters Page No.27 of 56
He has been feeding ducks and birds in the jail and frequently complains of
asthma.
Appellant has already undergone about nine years of sentence.
Learned counsel submits that likelihood of appellant committing any offence
was not there in view of his advance age and the other attending
circumstances. He submits that sentence of the appellant should be
reduced to a minimum period of 10 years.
Appellant is stated to be around 67 years of age and has been in
incarceration for nearly 10 years. Appellant is a first time offender. The
facts do not disclose any premeditation or planning or aggravated violence
being used in the commission of the offence. Appellant is a widower with
three daughters, one of them is married and two are of marriageable age.
The post conviction conduct of the appellant has been satisfactory and there
has been no complaint against him. Appellant has been performing the
duties allotted to him with devotion and interacting with other inmates and
is maintaining discipline and showing respect to the jail staff. He has not
shown any propensity towards crime.
Considering the age of the appellant, his post conviction conduct in
jail as well as obligation of marrying two daughters, possibility of his now
playing foul with law is remote. Considering the aforesaid factors, we are
of the view that ends of justice would be met with the appellant sentence
reduced to 10 years of actual sentence without remission together with fine
of Rs.30,000/- and in default, SI for three months.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
7. Crl.A.No. 126/2003 (Kewal Singh Vs. State)
Crl.(A) No. 5 of 2000 & connected matters Page No.28 of 56
Appellant Kewal Singh has been convicted vide judgment dated 13th
December, 2002 under Section 376 IPC. Vide the said judgment, he was
acquitted of the charges framed under section 363 and 366 IPC. Vide
orders dated 19th December, 2002, he was sentenced to imprisonment for
life for the offence punishable under section 376 (2)(f) IPC with a fine of
Rs.25,000/- and in default to undergo simple imprisonment for six months.
The appellant was prosecuted for offences under sections 363, 366 and 376
IPC in respect of Prosecutrix `G', a minor aged around 14 years.
Prosecutrix `G' is a mentally challenged girl who had been an inhabitant of
Asha Kiran, a Home for mentally challenged run by Department of Social
Welfare, Government of NCT of Delhi. Prosecutrix `G' on 7th September,
1997 had run away from Asha Kiran. As per prosecution's case, appellant
on finding her roaming in the streets brought her to his hut holding out the
promise of new clothes, chappals etc. He kept her there for two days.
During the said period, he kept the Prosecutrix `G' and is stated to have
raped her four times. Not only this, this unfortunate mentally challenged
girl complains to have been raped by few others when she had left Asha
Kiran. She claims to have been raped by someone even in cart when she
had taken a lift. Prosecutrix `G' did not remember the name of her village
or her father or uncle. She claims that about four persons had taken her to
their homes and raped her. She had duly identified the appellant.
Prosecutrix `G' was recovered from the hut of the appellant. Her medical
examination revealed hymen being torn and vagina admitted one finger.
Prosecutrix `G' had run away from Asha Kiran complaining that she was
beaten there and was recovered on 12th September, 1997. The Trial Court
rightly reached the conclusion that the charges under sections 363 and 366
IPC were not proved as Authorities of Asha Kiran had already lodged a
report of having run away and as per her own statement, she had run of her
own accord. Hence, there was no enticement or kidnapping. This is an
Crl.(A) No. 5 of 2000 & connected matters Page No.29 of 56
abhorring case of exploitation of a mentally challenged girl.
In the grounds of appeal, it has been claimed that prosecution has
not proved that Prosecutrix `G' was mentally retarded. It is contended
that it was unlikely that appellant could have committed rape four times
against her wish as she could have cried or raised hue and cry. The
suggestion in the appeal is that Prosecutrix `G' was a consenting party to
sexual intercourse. As per Prosecutrix `G' own version, she had been raped
by others. Hence medical evidence regarding rupture of hymen could not be
attributed to the offending act by the appellant.
Mr.Siddharth Luthra, Sr.Adv. learned Amicus Curiae urged that
statement of Prosecutrix `G' was vague, full of contradictions and
unreliable. He submitted that sequence of repeated rape in a cart, train
and in a house and finally in appellant's jhuggi/hut was illustrative of
uncertain behaviour. Regarding her paternity and medical condition, she
is unable to remember the name of her father whom she called uncle.
Mr.V.K.Raina for the appellant and Mr.Siddharth Luthra submitted that in
these circumstances, appellant could be considered for benefit of doubt.
We are not persuaded that appellant is entitled to benefit of doubt.
This mentally challenged girl was recovered from the jhuggi of appellant.
She was found with new clothes, chappals etc. The appellant had chosen
to deny everything in the statement under Section 313 Cr.P.C. The
statement of Prosecutrix `G' insofar as appellant is concerned is clear and
categorical. It speaks of appellant pressing her breasts and doing the act
and getting her clothes, food and other things. It is also an admitted
position that it was only when the neighbour and villagers had complained
that a girl was kept confined in a jhuggi that the police raided and found the
girl there and rescued her. It is a case of Appellant sexually exploiting a
mentally challenged girl by giving her shelter.
In these circumstances, we are satisfied that prosecution has
established its case against appellant under section 376 IPC. It is
Crl.(A) No. 5 of 2000 & connected matters Page No.30 of 56
appellant's own case that Prosecutrix `G‟s mental faculty was weak
inasmuch as she even did not remember the name of her village. In these
circumstances, absence of any document showing her to be mentally
challenged is of no consequence especially in view of her being admitted for
this purpose at Asha Kiran which is a home for mentally challenged.
Mr.Luthra also submitted that as Prosecutrix `G' was over 12 years of age,
this would not be a case falling under section 376(f) IPC but under Section
376(i) with minimum sentence of seven years which may go up to life and
in these circumstances, he prays that life sentence was rather harsh and
appellant's sentence deserves to be reduced in appeal.
We may also note at this stage that Mr.V.K.Raina who had also
been appearing as the nominated counsel for appellant, sought to urge that
Prosecutrix `G' was not a minor but a major. This is an empty plea. No
such issue had ever been raised during trial. Mr.Raina further submitted
that appellant was a widower and his mother was 85 years of age and
appellant was the sole support of her. Mr.Raina further submits that
appellant is an illiterate person and is a part of down trodden society. He is
a first time offender and his conduct in jail is satisfactory inasmuch as he is
attending meditation classes and has done vipasana and is capable of being
adjusted in the society.
In our view, this is not a case where the appellant is entitled to
benefit of doubt especially so in view of the mentally challenged girl having
been kept in his hut for over two to three days. The statement of the
prosecutrix clearly implicates the appellant. This is an abhorring case
where the mentally challenged girl suffering ill treatment at Asha Kiran, a
home for mentally challenged, had run away and was sexually exploited and
subjected to physical abuse. Counsel for the appellant without prejudice
to submission regarding this being the case for benefit of doubt, has urged
that life imprisonment was harsh as the appellant was a first time offender
and a 85 years old mother to support. It is claimed that appellant is an
Crl.(A) No. 5 of 2000 & connected matters Page No.31 of 56
illiterate person belonging to the down trodden section of the society and,
therefore, imprisonment for life, in these circumstances, would be a harsh
punishment.
As already noted by us, mere fact that appellant was a first time
offender was by itself an inadequate reason for reducing punishment. This
is a factor to be reckoned while considering rehabilitation. Similar is the
position with regard to alleged illiteracy or belonging to the weaker section
or down trodden section of the society. The only mitigating factor which
can be taken into account is his post conviction conduct which is reported
to be satisfactory and the appellant is stated to be attending meditation
classes and Vipasana and has not shown propensity to crime and may be
capable of being adjusted in society.
We are of the view that in this case where helpless mentally
challenged girl has been raped does not call for any leniency. The helpless
mentally challenged girl was allured with promise of clothes & goodies and
then exploited. The abhorring act deserves to be put down firmly and in
deterrent manner so that consequences for such acts are comprehendible
and known. We, therefore, uphold the conviction but in the circumstances
reduce the sentence to 13 years RI net exclusive of remissions and a fine of
Rs.25,000/-. In default of payment of fine, further SI for 6 months. Fine, if
realized, to be disbursed for the benefit of the victim by the Court on
receiving report from the Agency looking after the victim.
Appeal stands partly allowed in the above terms.
8. Crl.A.No. 541/2003 (Bishamber Vs. State)
Appellant Bishamber was convicted for the offence under
sections 363 and 376 IPC vide judgment dated 13th March, 2003. Vide
order dated 15th March, 2003, appellant was sentenced to life imprisonment
and a fine of Rs.50,000/- and in default, simple imprisonment for one year
for the offence under section 376 IPC. Appellant was sentenced to RI for a
Crl.(A) No. 5 of 2000 & connected matters Page No.32 of 56
period of five years and a fine of Rs.10,000/- and in default, simple
imprisonment for six months for the offence under section 363/376 IPC.
Appellant was prosecuted for kidnapping of a four year old girl and raping
her in a public park on 2nd April, 2000. Prosecutrix `C' who was residing in
Industrial Area, Lodi Road was raped by appellant in public park at about 5
p.m. She had been kidnapped while she was playing outside her house in
the afternoon. The parents of the Prosecutrix `C' got anxious when she
did not return to the house and started looking for her. They heard the
cries of Prosecutrix `C' and found that appellant had removed his trouser
and underwear of Prosecutrix `C' and was raping her. As per P.Ws 1, 2 and
3, appellant had raped the child after removing his trouser and her panty
and was holding her on his thigh. He was apprehended and beaten by the
public. Prosecutrix `C' was bleeding from her vagina. Prosecutrix `C'
was taken to Hindu Rao Hospital. Medical examination of Prosecutrix `C'
showed that she was bleeding from her vagina and her hymen was
ruptured. She was admitted in the hospital and treated for her injuries.
P.Ws 1 and 3 are father and uncle of Prosecutrix `C' and P.W 2 Kaushalya
was an independent witness who had been running a milk shop. She has
corroborated the statement. Appellant had denied all the evidence as
incorrect but did not deny his presence in the park and stated that he was
watching a magician show in the park when he was caught from behind and
accused of rape. We are of the view that appellant has failed to show any
motive for the parents of the Prosecutrix `C' to implicate him especially for
an independent witness like Kaushlaya to implicate him. Appellant received
injuries when he was beaten. The appellant did not give any suggestion to
the witnesses who had deposed that he was not at the spot and was
watching magician show.
Ms.Anu Narula sought to assail the conviction by pointing out what
she termed as discrepancies and inconsistencies. She submits that it was
not clear whether girl was alone or with her friends in the park.
Crl.(A) No. 5 of 2000 & connected matters Page No.33 of 56
Considering that it was a public park, she could not be playing alone. A
public park at 5 p.m or so, is reasonably crowded. It was unlikely that
anyone would attempt to commit rape there. Appellant is alleged to be
pressing her mouth while committing rape, if that being so, her screams
could not be heard. Besides, it was urged that child had become
unconscious. A reading of evidence would show that appellant is alleged to
be pressing her mouth and not gagging it and hence screams could be
heard. Prosecutrix `C' was found unconscious in the hospital and not in
the park. Learned counsel next submitted that CFSL report did not show
any stains of semen. Prosecutrix `C' is alleged to have been found in the
park. Photographs show that her underwear was found on the road.
Mr.Sunil Sharma, learned counsel for respondent-State in
opposition, submits that this was an unusual case of rape where even eye
witness was available who had seen the gory incident of rape. PW-3
Kaushalya Devi and uncle and father of the Prosecutrix `C' had actually
seen her being subjected to ordeal before rescuing her. In view of
overwhelming ocular evidence which does not seem to be tainted by any
ulterior consideration coupled with the injuries suffered by the child and the
appellant having been caught red handed, inconsistencies and discrepancies
sought to be raised by appellant's counsel are trivial and of no consequence.
We, therefore, find the appeal to be devoid of merit and maintain the
conviction.
On the question of sentence, Ms.Anu Narula seeks a reprieve in
sentence. She urges that appellant is a young man of 30 years, unmarried
and has an old mother to support. He has already been in incarceration
for nearly 8 years. His post conviction conduct has been satisfactory and
he has not displayed any propensity towards violence or crime. Appellant
has cordial relations with fellow jail inmates. He has been participating in
Satsang programmes. Counsel submits that appellant deserves to be
given an opportunity for penitence and reformation. Ms.Narula submits
Crl.(A) No. 5 of 2000 & connected matters Page No.34 of 56
that this is a fit case where the court ought to reduce the sentence by
recording reasons as no exceptional violence was used and the post
conviction conduct of the appellant shows his penitence and attempts to
reformation.
Mr.Sharma opposes the plea for any relief in sentence. Mr.Sharma
submits that this is a clear case where a four year old girl was raped by the
appellant by first kidnapping her and then taken to a public park. The girl
had suffered a rupture in hymen and was bleeding and had suffered other
injuries entailing hospitalization for two to three days.
Family of a person who commits such a crime, of necessity, has to
suffer disruption, hardship in life, and even ostracization. This by itself are
not factors calling for reduction in sentence. However, in this case,
considering the post conviction conduct which has been satisfactory and
appellant showing penitence by participating in satsangs and other
activities and there being nothing on record to indicate possibility of
recidivism, we are of the view that sentence for the offence under section
376 IPC may be reduced to minimum of 10 years imprisonment net
exclusive of remissions with fine of Rs.50,000/-as compensation and in
default, SI for one year. The compensation amount on realization be kept
in an FDR for the benefit of minor victim till she attains majority. The
punishment and order of sentence with regard to the offence under section
363 IPC i.e., RI for a period of 5 years with a fine of Rs.10,000/- and in
default, SI for six months, shall remain. The fine, on realization, be also
paid to the victim.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
Appeal stands partly allowed in the above terms.
Crl.(A) No. 5 of 2000 & connected matters Page No.35 of 56
9. Crl.A.No. 765/2003 (Lal Mohd. Vs. State)
Appellant Lal Mohammed has been convicted for the offence
punishable under section 376 IPC vide judgment dated 23rd September,
2002 by the Addl. Sessions Judge. Vide order dated 24th September,
2002, appellant Lal Mohammad @ Lala has been sentenced to imprisonment
for life and a fine of Rs.20,000/- for the offence punishable under Section
376(2)(f) IPC and in default, to undergo simple imprisonment for one year.
Appellant Lal Mohammed was at the relevant time 18 years of age
and working in a Cycle Shop as a daily wager. He was a tenant of Smt.
Urmila Devi, the complainant. Prosecution case is that prosecutrix `C' , a
young girl aged about 7 years complained to her mother Urmila Devi that
she was having difficulty in urination. She was scared to tell anything
more. On persuation, she told that on 6th June, 2000, when she had gone
to the roof, appellant Lal Mohammed had pulled her into the room and
raped her. She identified Lal Mohd who had committed rape. She was
taken to Lady Hardinge Hospital for medical examination. Appellant was
arrested. Clothes of prosecutrix and lungi of Lal Mohd. were also seized.
Statement under Section 164 of CRPC of the prosecutrix `C' was recorded.
In the medical examination, appellant has been found to be fit and capable
of having sexual intercourse. The appellant in his statement under Section
313 Cr.P.C admitted that he was a tenant but denied all other incriminating
evidence. No defence evidence was led. Appellant claims to have been
falsely implicated.
The medical examination of prosecutrix `C' on 09.06.2000 found
bruises around the perinium. Hymen was torn and there was a fresh tear.
There was redness all around the introitus. Medical report was proved as
Exhibit PW1/C. Prosecutrix denied the suggestion that her hymen was torn
while playing. Doctor also denied the suggestion that it could be torn only
Crl.(A) No. 5 of 2000 & connected matters Page No.36 of 56
when injury is received during play. No such suggestion was given by
counsel for the appellant to prosecutrix `C' that she received injuries while
she was playing and that no rape had been committed upon her. The
medical evidence fully corroborates the testimony of prosecutrix `C' who
complained rape by the appellant. It is significant that even after three
days of rape, Doctor found redness and bruises. Evidence of prosecutrix `C'
is clear and categorical. There has been nothing to dispel the same in cross
examination. There was no motive to implicate the appellant falsely. The
suggestion that the appellant's implication was there because Urmila Devi
had wanted him to vacate premises was denied. There was nothing to
suggest that Urmila Devi had wanted him to vacate the house. No previous
incident or effort on her part to seek eviction has been brought on record.
Mr.Sumit Verma, learned counsel for the appellant urges that there
was discrepancy with regard to the date of commission of alleged offence.
The complainant Urmila Devi had stated in her cross-examination that she
had reported the matter to the police on the date of the incident itself.
The date on which she had gone to the police station was 9th June, 2000
when she was asked to bring her daughter for medical examination in the
morning. She, therefore, took prosecutrix `C' for medical examination on
10th June, 2000 which would conflict prosecution version of rape being
committed three days earlier i.e on 6th June, 2000. Secondly, he submits
that complainant denied the lodging of complaint three days of the incident
and claimed that report was lodged on the same day. Complainant Urmila
Devi also stated that prosecutrix `C' was taken in the same clothes which
she was wearing. She took a spare set of clothes because she was
informed that her shorts would be taken by the Doctor and therefore she
kept a spare set of clothes. As per the complainant's version, she was
taken to the police station on the day of rape itself, when she was found
wearing the same clothes which were seized and sent to CFSL. In short,
complainant denies that report was lodged on the same day. Mr.Verma
Crl.(A) No. 5 of 2000 & connected matters Page No.37 of 56
submits that this doubt about the date of incident itself was sufficient to
give benefit of doubt to the appellant.
The second aspect urged by Mr.Verma is that as per prosecutrix's
version, when she went to the room, she was accompanied by her sister's
daughter Anjali. Non examination of Anjali, who was an eye witness,
according to Mr.Verma should be fatal to the case.
No semen has been found on the clothes of prosecutrix or accused.
He submits that in view of complainant's contradictory statements to the
police and the Court which shows that she was lying to either one of them,
raise sufficient doubts so as to entitle the appellant to the benefit of doubt.
Mr.Sunil Sharma, learned counsel for the respondent-State in
opposition submits that there was a ring of truth in complainant‟s version
that she had gone to report to the police on date of incident itself. She
cannot be held responsible if the FIR for the same was registered on 9th
June, 2000. Mr.Sharma submits that in view of categorical statement of
the prosecutrix `C' implicating the appellant duly supported by medical
examination and the absence of any motive on the part of prosecutrix `C'
and her family to implicate the appellant, these minor inconsistencies
cannot raise a doubt on the statement of prosecutrix `C' which has
remained unshaken in cross-examination. Mr.Sharma further submitted
that there are judicial pronouncements wherein the delay in lodging FIR in
similar cases has been condoned, duly explained and the FIR refilled and
acted upon.
In view of the foregoing discussion, as noted by us, there is no
ground made out for assailing the order of conviction. Appeal is,
accordingly, liable to be dismissed against the order of conviction and is so
dismissed.
Coming to the question of reprieve in sentence, Mr.Sumit Verma,
learned counsel for the appellant submitted that appellant is a young man
who has a whole life before him. He has been a law abiding citizen and this
Crl.(A) No. 5 of 2000 & connected matters Page No.38 of 56
was his first brush with Law. He deserves to be given a chance for
reformation and penitence. It is stated that appellant has already
undergone about 8 years of sentence. His post conviction conduct in jail is
reported to be good. He has been working in the Weaving section of the
jail factory. He is an ardent follower of Vipasana and has not violated the
jail discipline and nothing adverse has been recorded against him.
Mr.Verma, therefore, painstakingly urged that in this case, appellant could
either be given benefit of doubt and minimum sentence of less than 10
years deserves to be imposed on him based on the aforesaid reasons.
Considering the age of the appellant, his being the first time offender and
having not displayed any tendency of recidivism, his good post conviction
conduct, we are of the view that in this case, ends of justice would be met,
if the sentence of the appellant under section 376 (2)(f) IPC is reduced to
10 years RI net exclusive of remissions with a fine of Rs.20,000/- and in
default, SI for one year. Fine, if realized, be given to the victim. In case,
victim is minor, amount be kept in a fixed deposit with UCO Bank, Delhi
High Court Branch till she attains majority.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
Appeal stands partly allowed in the above terms.
10. Crl.A.173/2004 (Ram Avadh Vs. State)
Appellant Ram Avadh has been convicted vide judgment dated 29th
January, 2003 for the offence punishable under Section 366 & 376 IPC.
Vide order of sentence dated 30th January, 2003, appellant was sentenced
to undergo life imprisonment and to pay a fine of Rs.1000/- and in default
Crl.(A) No. 5 of 2000 & connected matters Page No.39 of 56
to undergo simple imprisonment for three months for the offence under
section 376 IPC. For the offence under section 366 IPC, appellant was
sentenced to undergo RI for three years and to pay a fine of Rs.500/- and in
default to undergo Simple imprisonment for a period of one month.
This is a case of prosecutrix `R' aged about 5 years who had gone
out to purchase bidi for her father at night. When she did not return for
sometime, her mother complainant herein went out to search for her.
Inquiries from the neighbours revealed that she had been taken by Ram
Avadh @ Ramu towards his jhuggi. On reaching near the jhuggi of Ramu,
she heard the screams of her daughter for help from inside. She called the
neighbours and raised hue and cry. Ramu, the appellant managed to
escape from behind the jhuggi. Prosecutrix `R' was removed to LNJP
hospital where her medical was got done and she was declared unfit for
statement. Appellant was arrested. MLC of the Prosecutrix `R' was
collected. Appellant was also medically examined. The statement of
Prosecutrix `R' was recorded under Section 164 of Cr.P.C. FIR was
registered under Section 363, 342, 323, 376 IPC. The case was committed
to Sessions for offences punishable under Section 363, 366 and 376 IPC.
However, charges were framed under Section 366 and 376 IPC. 17
witnesses were examined. The gynaecological report as proved by PW13
Dr.Shakun Tyagi, is Ex.PW 13/A which shows her Prosecutrix `R' having
sustained injuries, her inability to walk and legs keeping apart during
walking as also swelling of cheeks, bruises, lacerations. Blood stains on
external genitalia. Hymen was having fresh tears. Superficial lacerations
were present on posterior vaginal wall. Vaginal smear was taken. Slides
were prepared. Findings were suggestive of sexual intercourse.
Appellant in his statement under section 313 Cr.P.C., admitted his
residence in a jhuggi nearby but denied all other allegations. Appellant's
jhuggi was ten jhuggis away from the jhuggi of the prosecutrix.
Complainant had called out to her daughter. She heard her daughter‟s
Crl.(A) No. 5 of 2000 & connected matters Page No.40 of 56
voice saying "mummy mujhe bachao". She called the neighbours. As the
jhuggi's door was bolted from inside, the same was got broken.
Prosecutrix 'R' was lying unconscious in the jhuggi and appellant managed
to escape from the back door. Complainant as noted earlier took her to the
hospital and got medical done. Complaint was lodged as Ex.PW1/1.
This is a case of gory violence while committing rape. Blood was
oozing from the private parts of prosecutrix `R'. She had burn marks of
biri on her neck and bite marks on her cheeks. Prosecutrix `R' remained
unconscious and regained consciousness only at about 4 am after being
admitted in the hospital. Her statement was recorded and she was
discharged from the hospital after four days of indoor treatment.
Complainant also denied the suggestion that appellant has been falsely
implicated because of construction of jhuggi by the appellant which the
complainant protested. PW 3 Vinay corroborated the version of
complainant by saying that in his presence prosecutrix `R' was taken out
from the jhuggi of the appellant. Pradeep Kumar, another independent
witness, also supported and corroborated the statement of complainant
while deposing that he informed complainant that cries of her daughter
were being heard from the jhuggi of appellant. Prosecutrix `R' had deposed
that the accused was known to her and had taken her to his jhuggi when
she came out to purchase biri for her father. He removed her underwear
and did "ganda kam" with her. Appellant was wearing underwear and
baniyan. He removed his underwear. He had put burning matchsticks on
her neck. Her mother came there. Appellant ran away from the back door.
Her mother took her to the hospital. She also admitted her statement
recorded U/s.164 Cr.P.C. The Trial court in its judgment rejected the plea of
the appellant that he had been falsely implicated or that there was a delay
in the lodging of the report. The complaint had been lodged at the earliest
opportunity. The MLC also revealed that the child had been raped. Though,
the name of the appellant was not recorded in the MLC, but other
Crl.(A) No. 5 of 2000 & connected matters Page No.41 of 56
particulars have been mentioned. The court rejected the plea or motive
over the construction of jhuggi as set-up by the appellant. The court also
upheld the plea of kidnapping in as much as the child was taken away from
the constructive custody of her parents.
In view of the foregoing discussion, we do not find any ground to
interfere with the order of conviction passed by the learned Addl. Sessions
Judge and uphold the same. As regards the sentence, learned counsel for
the appellant seeks reprieve and reduction in sentence from life
imprisonment to 10 years for the offence under section 376 IPC. He
submits that appellant Ram Avadh @ Ramu is stated to be 50 years old.
His wife expired in the year 1993. He was rearing goats. He has three sons
who are 23, 20 and 18 years of age. He does not know the whereabouts of
his sons. The appellant relies upon the judgments of this court for lesser
sentence being imposed i.e in the case of Sheikh Falsar S/o. Sheikh
Kuwaad, Rakesh @ Kakey Vs. Govt of NCT (Crl.A.No.154/2005). He also
relies on the judgments in "Mohd. Alam Vs. State of NCT of Delhi" reported
at 2006(3) JCC 1812 and "State of Karnataka Vs. Krishnappa" reported at
2000 (3) SC 516 wherein imposition of minimum sentence in cases of rape
of minors was upheld.
Mr.V.K.Raina, learned counsel for the appellant, in these
circumstances, urges that appellant was a first time offender and his life is
otherwise unblemished. His post conviction conduct has been satisfactory
and there has been no complaint. He is an illiterate person and has been
participating in meditation, vipasana. He has worked in jail kitchen and
also as a sevadar in the wards.
As submitted by Mr.Siddharth Luthra, Sr.Adv.Learned Amicus Curiae,
this is not a case of child rape simplicitor. It is accompanied with violence
as is evident from the burn marks sustained by the prosecutrix. The child
was also of a tender age of 5-6 years where it could not be said that it was
a case of approaching adolescence. Mr. Luthra points out, as is evident
Crl.(A) No. 5 of 2000 & connected matters Page No.42 of 56
from the statement of the appellant, that he has lost touch with his family
and whereabouts of his sons are not known and hence, there would be no
rehabilitation in society but being adjusted with the family. Hence, he could
again be exposed to the same tendencies. His conduct in jail has been
satisfactory and this would only be a positive factor for him. Mr.Luthra, Sr.
Adv, therefore, submits that the offence was committed in complete
disregard to the fact that his own family were at the jhuggi at a lower level
while he was watching TV on a higher level in the jhuggi. He, however,
submits that grant of sentence to the appellant is left to the judgment of
the court. Considering the aforesaid factors and the difficulties in
readjustment in society, with the family, as noted above, the possibility of
recidivism cannot be ruled out.
Considering the violent manner of crime resulting in grave and
serious injuries to the child of 5 years resulting in her hospitalization for
four days accompanied with burn and bite marks on the child demonstrate
the sadistic tendencies of the appellant. Appellant was a grown up man of
52 years having grownup children and yet he perpetrated this heinous crime
on an innocent minor. Considering the manner and the violence which
accompanied the crime, we are of the view that this is not a case where the
appellant‟s sentence deserves to be reduced to the minimum admissible in
law i.e 10 years. However, considering his post conviction conduct in jail,
we reduce the sentence of life imprisonment for the offence under section
376 IPC to 13 years RI net exclusive of remissions with fine of Rs.1000/-
and in default, to undergo, SI for three months. Conviction as regards
offence under section 366 IPC i.e., RI for three years and a fine of Rs.500/-
and in default, to undergo SI for a period of one month, remains.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
Crl.(A) No. 5 of 2000 & connected matters Page No.43 of 56
law.
Appeal stands partly allowed in the above terms.
11. Crl.A.No. 89/2006 (Santosh Kumar Vs State)
The appellant Santosh Kumar was convicted under section 376 IPC
vide judgment dated 28th May, 2005 and vide order of the same date, he
was sentenced to life imprisonment with a fine of Rs.5000/- and in default,
to undergo RI for six months.
The case of the prosecution is that on 21st February, 2002, appellant
had called prosecutrix `J' aged about 8 years and took her into his
premises. Appellant was stated to be familiar with prosecutrix `J' being
residing in the same street. As per prosecutrix `J', he removed her
kachchha and his kachchha and in her words forcibly put his place of
urinating in her place of urinating. She started weeping as blood started
oozing. At the relevant time, prosecutrix `J's brother was admitted in
the hospital and her mother was with him and her father was on duty and
she was taken to the hospital by some neighbour. She did not tell the
neighbour how she received injuries but told her mother as well as to the
Doctor that appellant had done ganda kam with her and blood oozed.
Prosecutrix `J' was examined at Sanjay Gandhi Memorial Hospital and had
been examined by Dr.Manju Goel who has since left service. As per the
M.L.C, abdomen showed no external marks of injury, sex characters were
not developed. External genitalia was not well developed. Blood clots
were present around the perineum. Child was examined under anesthesia.
Vagina was full of blood clots. Tear was present on posterior vaginal wall,
tear was also present on right lateral vaginal wall extending high up in
vagina, tear was present on left lateral vaginal wall, hymen was absent, no
hymenal tag, tear was present on posterior fourchette extending upto anus,
anus spchinctor intact. All tears were stitched. Prosecutrix `J' had
admitted of sexual assault by someone in the vicinity. Dr.Punita Mahajan,
Crl.(A) No. 5 of 2000 & connected matters Page No.44 of 56
HOD on being asked if the prosecutrix `J' was still capable of bearing child,
she had deposed that it cannot be said since the victim was so small and it
could not be ascertained how much damage was caused to the vaginal
passage. The complainant PW-4, i.e father of prosecutrix `J' had deposed
that his son was admitted in Sanjay Gandhi Memorial Hospital and after
finishing his duty, he had gone to the hospital and when he returned home,
he came to know that his daughter had fallen and someone in
neighbourhood had removed her to the hospital and thus he went back to
the hospital. At the hospital, he learnt that his daughter had not received
injuries due to fall and had received injuries because she was subjected to
sexual assault. According to the complainant, when his daughter regained
consciousness, she said that this act was committed by Anita's Chacha i.e
appellant who was residing near their house.
Learned counsel for the appellant Mr.V.K.Raina submitted that there
were several contradictions in the version of the prosecution which had
been ignored. Complainant in his complaint and in examination-in chief
had claimed that prosecutrix `J' was unconscious when he met her in
hospital but in cross-examination he admitted that his daughter was
conscious and he had some conversation with his daughter who told him
that she had received injuries after falling. Appellant's counsel also sought
to question the testimony of Dr.Punita Mahajan on the ground that she was
not the person who had examined the prosecutrix `J' and her testimony
should be of no avail. Appellant also sought to suggest that all the
witnesses were interested witnesses and no independent witnesses had
been examined. Counsel submitted that complainant's own case was that
his daughter i.e prosecutrix `J' had received injuries by falling while
skipping rope. Prosecution version that prosecutrix `J' was watching barat
when she was lured by the appellant but participation in the barat had not
been supported by any of the other witnesses.
On a perusal of the trial court judgment, we find that trial court has
Crl.(A) No. 5 of 2000 & connected matters Page No.45 of 56
comprehensively dealt with all aspects and pleas raised in defence.
Learned Trial Judge has observed that it was quite natural that prosecutrix
`J' who was of tender age, had not disclosed her ordeal especially when
her parents were not at home and told that she had sustained injuries on
falling. She would have similar hesitation in disclosing her ordeal to her
father. However, this plea would hardly be of any avail in view of the clear
statement of prosecutrix `J' and her identifying the appellant as the person
who had taken her to his house. Medical evidence has fully corroborated
and established rape of the young innocent girl. In fact, we find that girl's
testimony in this case is clear, descriptive, cogent and elaborative and
leaves no manner of doubt.
In these circumstances, the absence of semen cannot dislodge the
categorical testimony of prosecutrix to urge that offence under section 376
IPC was not committed.
In view of the foregoing discussion, we find no ground to interfere
with the order passed by the learned Addl. Sessions Judge convicting the
appellant for the offence under section 376 IPC and maintain the conviction.
At this stage, learned counsel for the appellant made a plea for
clemency for the appellant in the matter of sentence. He urges that
appellant was a young man of 23 years of age and has full life before him
and could be reformed. This was the first offence. He is the only support
of his old parents and his sentence should be reduced from life to minimum
sentence as admissible at law. A report from the jail had been called for.
The post conviction conduct of the appellant has been satisfactory and there
is no complaint against him. There has not been no propensity or
susceptibility towards crime. However, he continues to protest his
innocence. He had enrolled twice for 10 days' vipasana classes and
completed the same. He has been working in jail kitchen (langar) and also
as a sevadar in the wards. He has studied upto 9th class. His elder
brothers have been working as labourers. He himself was a labourer. His
Crl.(A) No. 5 of 2000 & connected matters Page No.46 of 56
father is 58 years of age and is an agriculturist having 15 bighas of land at
Sultanpuri, U.P.
We may, however, note that medical record shows that offence was
committed with such force on a tender child which resulted in extensive
blood clotting in the vagina, tear on left lateral vaginal wall, absence of
hymen and tear on posterior fourchette extending upto anus so much so,
Dr.Punita Mahajan, HOD had opined that it could not be said as to how
much damage was caused to the vaginal passage. However, offence
appears to have been committed without any prior planning and on the spur
of moment, taking advantage of the child watching barat and alluring her
away.
Considering the force used and the injuries suffered, this is a case
where more than minimum sentence ought to be imposed. We are,
therefore, of the view that ends of justice would be met by modifying the
sentence imposed from life imprisonment to one of RI for 12 years net
exclusive of remissions with a fine of Rs.5000/- and in default, to undergo
SI for six months with such remissions as the appellant may be entitled to.
Appellant shall also not make any contact with the victim or any
immediate member of her family and in case, appellant violates the above
condition, it shall be open to the authorities to take action for his
externment from the locality of the victim or its vicinity in accordance with
law.
Appeal stands partly allowed in the above terms.
12. Crl.A.141/2006 (Rattan Pal @ Monu Vs. State )
Vide judgment dated 9.12.2005, learned Additional Sessions Judge
convicted the appellant under Section 376(2)(f) IPC. Vide an order of the
same date, he sentenced the appellant to undergo life imprisonment and
also pay a fine of Rs.5,000/- and in default, to undergo simple
imprisonment for a period of two years.
Crl.(A) No. 5 of 2000 & connected matters Page No.47 of 56
The case of the prosecution is that the appellant Rattan Pal @ Monu,
on 25.4.2004 at about 5.00 p.m., called the prosecutrix „B‟, aged about 8
years, who was his neighbour, and took her along with him. Prosecutrix „B‟
returned after one hour crying and upon her mother Sangeeta, the
complainant, asking her the reason, she did not respond. Complainant, who
is a maid, has four children, two daughters and two sons. On 26.4.2004,
prosecutrix told her mother that she was feeling pain in her private parts
and on the complainant sternly enquiring from her, she told that the
appellant had taken her to his room, removed her underwear, raped her
and also threatened her not to narrate these facts to anyone. Police report
was lodged. Statement of the complainant was recorded. The prosecutrix
was got medically examined. Her hymen was found torn and other minor
injuries on her person were found. The appellant was arrested from
Ramlila ground on the pointing out of the prosecutrix, whose statement was
also recorded under Section 164 Cr.PC. The appellant‟s statement under
Section 313 Cr.PC was recorded. He claimed that the complainant was on
inimical terms with the appellant‟s family and he was falsely implicated.
As per the medical examination, the following injuries were also
found on the prosecutrix :
(i) Abrasion 2 x 0.5 cm. present on the sternal region;
(ii) Abrasion 4 x 2 cm. present on the right cheek;
(iii) Abrasion 0.5 x 0.5 cm. present on right knee.
The MLC Exhibit PW-7A was also proved, which showed hymen torn
and admitting one finger. CFSL report was negative for semen. Blood was
found in one of the undergarments. The injuries mentioned earlier were
also found present. Learned Trial Judge has also noticed counseling report
of the prosecutrix, which records aggressive and stern attitude of her
mother, the complainant, and the trauma of the child following the incident.
Crl.(A) No. 5 of 2000 & connected matters Page No.48 of 56
Before the trial Court, the appellant had submitted that the silence of
the prosecutrix for one day was pernicious and fatal as a child of eight years
would instantaneously inform the parents of the rape. It was urged that
corroboration of the statement of the child was missing. Besides, her
statement simply said that appellant had done „gandi baat' with her, which
did not make out a case of rape. Appellant also claimed that his father was
a drunkard and the complainant wanted to grab their plot of land and for
this purpose, he has been falsely implicated. Certain contradictions
regarding the prosecutrix pointing out the accused at the Ramleela Ground
and the missing signatures on Jama Talashi etc. were sought to be raised.
Learned trial Judge has comprehensively and extensively dealt with each of
the submissions made in the well reasoned judgment reaching the
conclusion with regard to the guilt of the appellant.
The judgment of the trial Court is assailed on the ground that as per
the statement of the prosecutrix, the appellant left on raising the alarm and
arrival of her father. In these circumstances, it is urged that prosecutrix
and complainant remaining mum for one day was unexplainable. Learned
counsel for the appellant Mr. R.K. Srivastava urged that at best, it could
have been a case under Section 354 IPC and not under Section 376 IPC. He
next urged that there was motive for the complainant and the prosecutrix to
falsely implicate the appellant, as they wanted to grab the premises, portion
of which was in possession of appellant and his family and where the
prosecutrix also resided with family.
Learned counsel for the appellant further submitted that the
possibility of prosecutrix accompanying the appellant was remote since
there was a quarrel between the families. The prosecutrix and her brothers
and sisters had been stopped by their parents from visiting the family of the
appellant. A report had also been lodged by the mother of the prosecutrix
on account of appellant‟s father being a drunkard. Mr. R.K. Srivastava
Crl.(A) No. 5 of 2000 & connected matters Page No.49 of 56
urged that all the above factors make the case of the prosecution doubtful
and the appellant was entitled to the benefit of doubt.
Counsel for the appellant urged that there was also a contradiction
inasmuch as while the complainant had claimed that her daughter had been
lured at about 5.00 p.m. on 25.4.2004, in the deposition before the Court,
PW-1 had stated that her daughter was lured on the pretext of a video
game at about 2.30 p.m. and returned at 3.00 p.m. crying and told her that
she had been raped. Complainant contradicts herself whether she came to
know of the rape on the same day, i.e. 25.4.2004 or on 26.4.2004, i.e., the
next day when she lodged the report with the Police. In her statement
before the Court, she claimed that she immediately came to know that her
daughter had been raped.
Learned counsel for the State Mr. Ravinder Chadha rebuts the
submissions of the counsel for the appellant and submits that the
prosecutrix had specifically described the incident including the appellant
removing her undergarments and lying on top of her. In the examination-
in-chief, she has submitted that the appellant had done „gandi baat' with
her. The medical evidence about the hymen being torn, vaginal swabs and
the injuries support the same. The absence of semen is not determinative
or conclusive of the offence not being committed.
We have heard learned counsel for the parties and we are not
persuaded with the submissions made by learned counsel for the appellant.
The discrepancies sought to be pointed out are such, which are normal and
as a result of vicissitudes and on account of passage of time. We do not
find anything abnormal in the child not disclosing her ordeal to her mother
on the same day in view of the threat extended to her by the appellant and
her mother‟s overbearing attitude. It is only the next day when the pain
persisted that the child disclosed it to the mother, who took action. In this
case, the complainant had categorically denied the suggestions or any
attempt to grab or purchase the plot of the appellant. Except a bald
Crl.(A) No. 5 of 2000 & connected matters Page No.50 of 56
statement, no other evidence with regard to the same has been led. The
statement of the prosecutrix has a ring of truth in it. The prosecutrix has
candidly admitted in her statement that her mother used to beat her. In
the cross-examination, the prosecutrix deposed that after removing her
underwear, the appellant lay on her. Nothing more was required to be
described by her. The medical evidence fully corroborates her ordeal
thereafter with a torn hymen.
In the present case as noted in the counseling report itself, the
prosecutrix‟s mother had overbearing and stern attitude. The statement of
the prosecutrix is clear, categorical and cogent. The medical evidence and
report corroborates the same. Hymen was found torn. Prosecutrix had
suffered minor abrasions and other injuries. In these circumstances, the
minor inconsistency or discrepancy do not in any manner dilute the case
against the appellant/accused.
We, accordingly, find no ground to interfere with the order of
conviction as passed and uphold the same.
At this stage, learned counsel for the appellant seeks clemency by
saying that the appellant is a young boy of 18 years at the time of the
incident. He had one younger brother and two sisters. He had no formal
education but could sign. He used to work in a cardboard factory. His
father is a cycle repairer and was earning about Rs.50-60/- per day. The
appellant, it is stated, used to earn about Rs.1500/- per month. There are
no criminal antecedents and it is his first offence. The appellant has been
working in the Jail Langar. His post-conviction conduct in Jail has been
satisfactory and nothing adverse has been pointed out. The appellant is
not stated to be having any propensity to crime. Learned counsel for the
appellant submitted that in these circumstances, the appellant, who is a
young man, should be given a chance to reform and the minimum sentence
as admissible under the statute, should be imposed if the Court reaches a
conclusion that the conviction is to be affirmed.
Crl.(A) No. 5 of 2000 & connected matters Page No.51 of 56
The father of the appellant has also filed an affidavit before the court
stating that he is desirous that appellant lives as a reformed person. It is
further stated that he along with appellant and other members of the family
were residing in 1/4th of the premises, that portion he has already sold on
26th March, 2007 and he has purchased a plot at Loni and that at present he
was living as a tenant in the premises but he undertakes to vacate the same
within a month. Appellant‟s father and mother have also undertaken to the
court and also on behalf of the appellant that they would not reside near the
residence of the prosecutrix nor visit the locality. Affidavit to the same
effect has also been filed by the appellant.
The only mitigating factors in the present case are the young age of
the appellant and this being his first offence. There does not appear to be
any planning for the commission of the offence. The possibility of
appellant being reformed and rehabilitated exists. He has not shown any
propensity to crime while in jail. His post conviction conduct in jail has
been satisfactory.
In view of the foregoing, we are, therefore, of the view that in this
case, ends of justice would be subserved by modifying the sentence
awarded to the appellant from life imprisonment to minimum sentence of 10
years with admissible remissions and subject to payment of fine which is
enhanced from Rs.5000/- to Rs.20,000/- and in default, to undergo SI for
two years.
The affidavits of the appellant and his father to the effect that they
would not reside in the premises where the prosecutrix and her family are
residing or in its vicinity are accepted. Appellant and his father shall duly
abide by the undertakings given.
The authorities independent of the aforesaid undertakings given, shall
be at liberty to proceed in accordance with law for externment of the
appellant and/or his family members, if so warranted, in case they violate
the above undertakings.
Crl.(A) No. 5 of 2000 & connected matters Page No.52 of 56
13. We have perused the draft of the Scheme proposed by the
National Commission for Women for rehabilitation of rape victims. The draft
scheme has been produced by the Amicus Curiae. We had enquired from
the Standing Counsel (Criminal) Ms.Mukta Gupta as to the current status
with regard to its implementation or other welfare measures adopted. We
are informed that the scheme is under active consideration of the Central
Government. Ms.Mukta Gupta informs that the state does provide
help/grant in deserving cases and also counselling through its social
workers to the affected persons. We are concerned and are indeed
dismayed that as yet no concrete steps or scheme for rehabilitation of
victims of rape or child rape victims has been put in operation. Even though
considerable time has elapsed since the commission of offences and
appointing counsellors may not be as effective, we deem it appropriate that
every measure be taken even at this belated stage which might be
beneficial for the growth and development of victim. In these
circumstances, we consider it appropriate and expedient to direct the
Secretary, Delhi High Court Legal Services Committee to engage a qualified
lady Child Counsellor, to be deputed, to visit the residence of the victims in
each of these cases and make discreet enquiries. Counsellor shall assess
rehabilitation and adjustment of the child rape victim within the family and
community. The assessment with regard to her education and growth as
also the development of personality be indicated in the report, to be
submitted within three months. Needless to mention that the Counsellor
would proceed in a manner so as to win over the confidence of child and
members of the family and make recommendations for re-adjustment and
ensuring proper growth and a healthy normal life for the victim. The fee of
the Counsellor is tentatively fixed at Rs.7500/- each in the 12 cases, to be
borne by Delhi High Court Legal Services Committee.
From time to time directions and observations setting out the
measures to be taken to minimise the rigours of the trial for victims of rape
Crl.(A) No. 5 of 2000 & connected matters Page No.53 of 56
and sexual abuse have been given in a number of judicial pronouncements.
These directions have varied from avoidance of eye contact with the
accused, provision of a screen, control of offensive, vexatious and obtrusive
questions in cross-examination of the victim etc. These are intended to
reduce and minimise the trauma of the victim of the offence and rigour of
the trial and to prevent the erosion and loss of self confidence of the victim.
There is a dire need for effective measures to be taken from the initial stage
of commission of offence itself to ensure adjustment and rehabilitation,
healthy and normal growth of the victim as member of the community.
For achieving this, it is necessary to sensitize all those who are involved in
the investigation, prosecution and trial of the offence and the role each one
of them can play to mitigate the rigour of the trial and prevent the erosion
and loss of confidence of the victim. Towards this end, following directions
are being given:-
(i) The concerned S.H.O shall inform the Delhi Legal Services
Authority immediately of the commission of the offence of rape.
The D.L.S.A shall depute a Social Worker/Para Legal Worker to
establish contact latest within a week of the commission of offence
with the victim and her family. The Social Worker/Para Legal
Worker shall work towards gaining the confidence of the victim
and provide necessary moral and legal support and advice as may
be required to face the ordeal. The Social/Para Legal Worker shall
operate under the overall guidance and supervision of the Child
Counsellor/Psychologist nominated by the Delhi Legal Services
Authority. The Child Counsellor /Psychologist shall personally
step in and give assistance to the Social/Para Legal Worker or
herself handle the case, wherever required, to ensure adjustment
and rehabilitation of the victim. The Child
Counsellor/Psychologist will also ensure that education of the
Crl.(A) No. 5 of 2000 & connected matters Page No.54 of 56
victim is not disrupted and normal life is restored as soon as
possible. A report would be submitted to the Delhi Legal
Services Authority in this regard by the Child
Counsellor/Psychologist.
(ii) Delhi Judicial Academy has been organizing seminars/workshops
for sensitization of Judicial Officers in the conduct of cases of rape,
sexual abuse. The Commissioner of Police and Director of
Prosecution shall either themselves or through Delhi Judicial
Academy organize seminars/workshops for the police personnel
and personnel of the prosecuting agencies for their sensitization
in cases of rape and sexual offence so that they are receptive to
the difficulties, suffering, pain and trauma of the victim and her
family.
(iii) The Secretary, Department of Health, Government of NCT of Delhi
as also the Director General, Health Services, Government of India
would either themselves or through Delhi Judicial Academy
organize seminars/ workshops/courses for the Doctors and
medical personnel involved in the examination and treatment of
victim of rape and sexual offence to ensure a humane approach in
dealing with them and also to familiarize them in the reporting
requirements of medical and clinical examination for trial
purposes.
Appeals stand disposed of in above terms with the above
directions and observations.
We record our appreciation for the assistance given by the Amicus
Curiae Mr. Siddharth Luthra, Sr. Advocate and his associate Ms. Rajni
Gupta and the counsel appearing for the appellants as well as the State,
Crl.(A) No. 5 of 2000 & connected matters Page No.55 of 56
who have adopted a very constructive approach in their submissions and
assisted us in reaching our conclusions.
Manmohan Sarin, J.
July 7th, 2008 S.L. Bhayana, J.
Ssb
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