Ombir vs State
2009 Latest Caselaw 150 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                               Crl. Appeal No.345/2008

%                                Date of Order : January 19, 2009

        OMBIR                                   ..... Appellant
                           Through : Mr. O.P.Sharma, Advocate


                                     VERSUS

        STATE                                  .....Respondent

Through : Mr. Pawan Sharma, Advocate

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment?

(2) To be referred to the reporter or not? Yes

(3) Whether the judgment should be reported in the Digest ? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. The appellant has been convicted for offences

punishable under Section 376 (2) IPC; 324 IPC, 325 IPC and

342 IPC. He has been sentenced to undergo imprisonment of

life for the offence punishable under Section 376 (2) IPC and

to pay a fine of Rs.10,000/-, in default to undergo simple

imprisonment for six months. For the offence punishable

under Section 324 IPC he has been sentenced to undergo

rigorous imprisonment for 1½ years and to pay a fine of

Rs.2,000/-, in default to undergo simple imprisonment for two

months. For the offence punishable under Section 325 IPC he

has been sentenced to undergo rigorous imprisonment for

three years and to pay a fine of Rs.2,000/-, in default to

undergo simple imprisonment for two months. For the

offence punishable under Section 342 IPC he has been

sentenced to undergo rigorous imprisonment for a period of

one year and to pay a fine of Rs.500/-, in default to undergo

simple imprisonment for a period of 15 days. All sentences

have been directed to run concurrently.

2. Briefly stated, case of the prosecution was that on

the intervening night of 7th and 8th October 2003, Anshu wife

of the appellant informed the police that the appellant was

married to her about 1½ years ago and her father being very

poor had left her sister „L‟ aged 10 years and her sister

Sushila aged 3 years with them and that the appellant used to

drink liquor and beat her. She informed that on 7.10.2003

her sister L told her that the appellant had raped her on

6.10.2003 and even on previous occasions had raped her.

She informed that when she confronted the appellant with the

said fact he inflicted injuries on her left arm, legs and the

back with a kitchen knife and gave leg and fist blows on her

sister L and slapped her mercilessly. She informed that she

and her sisters were kept as virtual prisoners. She informed

that the appellant had injured her private parts with a handle

of a hand pump. She stated that on 7.10.2003 the accused

had gone to answer the call of nature and forgot to lock the

door from outside and using this opportunity she ran out of

the house and met a man on the road named Chander Bhan

to whom she narrated her plight and Chander Bhan brought

her to the police station.

3. A FIR was registered on the statement of Anshu.

Police personnel were sent to the house who recovered her

sisters L and Sushila. The appellant was arrested.

4. PW-3 Dr.Vishal Sehgal examined Anshu on

8.10.2003 and recorded the MLC Ex.PW-3/A noting therein the

injuries on Sushila being:-

"A. Multiple clean incised wound over left forearm (2-3 days old).

B. Infected clean lacerated wound over first web space of right hand.

C. Multiple bruises over back and both thighs and buttocks."

5. He referred Sushila to a Gynecologist for

gynecological examination.

6. On the MLC Ex.PW-3/A, the Gynecologist has

recorded as under:-

"Supra urethral laceration bleeding on touch.

Vagina wall bleeding on touch."

7. Unfortunately, at the trial the Gynecologist has not

been examined and the learned public prosecutor has not

bothered to formally prove the recording of medical

examination by the Gynecologist on Ex.PW-3/A.

8. Kumari L was examined on 8.10.2003 by Dr.Swati

Shitoley working at DDU Hospital who noted on the MLC

Ex.PW-6/A that the hymen appeared to be torn. Blue 1 cm

discolouration present over posteriosly. Since Dr.Swati

Shitoley had left DDU Hospital, PW-6 Dr.Swati Diwakar who

was familiar with the writing of Dr.Swati Shitoley proved the

MLC Ex.PW-6/A. Dr.Pooja Bhasin, PW-7 also examined Kumari

L at DDU Hospital on 8.10.2003 and on the MLC recorded,

vide Ex.PW-7/A the following injuries on Kumari L:-

"A. Swelling and multiple old abrasions present over face.

B. Swelling and tenderness present over right elbow.

C. Swelling and tenderness present over left hand.

D. Abrasions present over bilateral elbows dorsum of bilateral hands, bilateral knees and legs."

9. Since the injuries were opined to be caused by a

blunt object, Dr.Pooja Bhasin suspected a fracture and

referred Kumari L to the department of Radiology where

Dr.Sanjeev, PW-11 working in the Orthopedic department of

the hospital examined Kumari L with reference to X-ray of the

hands and the arms of Kumari L and vide Ex.PW-11/A

recorded on the MLC that the right elbow had a fracture and

that even the left hand had a fracture. He opined that the

injuries were fresh and the duration thereof was within last 24

hours.

10. Armed with the MLCs aforenoted and the

statements of Anshu and Kumari L, the charge sheet was filed

and charges were framed against the appellant in respect

whereof he has been convicted as aforenoted.

11. At the trial Anshu was examined as PW-1. She

reiterated the contents of her statement recorded by the

police as have been noted hereinabove.

12. She was cross examined. Nothing of substance

has been brought out in her cross examination. Learned

counsel for the appellant has pointed out no infirmity in her

statement or anything to discredit her with respect to her

cross examination.

13. Chander Bhan, the person whom Anshu met when

she ran out of the house was examined as PW-5. He

corroborated the statement of Anshu that on 7.10.2003, at

around 11:00 P.M. Anshu had met him. He stated that she

was very scared and had injuries on her body and that he

took her to the police station.

14. Kumari L aged about 11 years when examined as

PW-4 has depposed that her father had left her and her

younger sister Sushila with Anshu who was their elder sister.

She stated that the accused had been raping her. She stated

that when she told this fact to her sister and upon the

accused learning about the same he not only assaulted her

but also assaulted her sister with the handle of a hand pump.

She stated that the accused used to lock them up.

15. In spite of a very lengthy cross examination,

nothing of substance has been brought out by the appellant

to discredit PW-4.

16. The doctors above noted proved the MLCs of Anshu

and Kumari L. The police officers associated with the

investigation deposed about the registration of the FIR and

further investigation carried out. We are not noting said

evidence as learned counsel for the appellant has made no

submissions pertaining thereto.

17. A half-hearted plea has been urged by learned

counsel for the appellant to the effect that the circumstance

of Anshu meeting Chander Bhan at 11:00 in the night is

unnatural and hence the very origin of the case is doubtful.

The second contention urged is with reference to the

testimony of PW-11 who had examined Kumari L qua the

fractures suffered by Kumari L; he had deposed that

according to his opinion the injuries were fresh in nature and

the duration was within last 24 hours. Counsel urged that

PW-11 had examined Kumari L on 8.10.2003 and that as per

the prosecution Kumari L was recovered by the police in the

intervening night of 6th and 7th October 2003 and thus the

injuries on Kumari L could not have been inflicted by the

appellant.

18. With reference to the first plea urged today, suffice

would it be to state that there is nothing unnatural in Anshu

coming across Chander Bhan on the road at 11:00 in the night

and Chander Bhan, as a good citizen, on seeing her plight and

hearing her story, accompanied her to the police station.

19. Pertaining to the second plea, no doubt PW-11 has

deposed that the fracture injuries suffered by Kumari L were

fresh in nature and the duration was within last 24 hours.

But, that does not discredit the version of Anshu or Kumari L.

Indeed, the same very MLC three doctors who have examined

Kumari L have penned their opinion with reference to the

injuries on person of Kumari L, contents whereof have been

noted by us in para 4 and 6 above. PW-6, the Gynecologist

who had examined Kumari L categorically deposed that as per

her opinion the sexual assault on Kumari L was about 2 days

ago as evidenced by the medical condition of Kumari L. PW-3

who had examined Anshu categorically deposed that the

injuries on Anshu were 2-3 days old. This corroborates the

testimony of Kumari L and Anshu of being assaulted by the

appellant on 6.10.2003.

20. The MLCs of Anshu and Kumari L speak the sordid

state of affairs and tell their own tale.

21. We are satisfied with the view taken by the learned

Trial Judge that all charges framed against the appellant

stand fully established; noting that the charge under Section

342 IPC stands established from the testimony of Anshu and

Kumari L wherein both have categorically stated that the

appellant used to lock them inside the house. In fact, Anshu

has deposed that whenever she or her sister were beaten

mercilessly and on her raising an objection, the appellant

used to tell them that he had purchased her and her sister

and he can do whatever he likes with them.

22. Learned counsel for the appellant lastly urged that

the sentence imposed is excessive. This submission was

restricted to the sentence of imprisonment for life imposed

upon the appellant under Section 376 (2) (f) of the Penal

Code.

23. It is not in dispute that Kumari L was aged 11 years

when she was ravished by the appellant. Thus, the legislative

mandate of the sentence being not less than 10 years

imprisonment has to be kept in mind unless due to adequate

and special reasons the sentence of a lesser term can be

inflicted. The upper limit of the sentence may be

imprisonment for life.

24. It is not a case of a one time rape. Kumari L was

raped at least three times. Not only that. She was brutalized

by the appellant. The innocent child was hit over the face,

the hands, the dorsum of bilateral hands and legs. She had

suffered two fractures. The conduct of the appellant qua his

wife and acts of brutality qua her have also to be taken note

of. Anshu was assaulted on her private parts with a handle of

a hand pump. The MLC of Anshu records bleeding on the

vagina wall on touch and laceration bleeding in the supra

urethral area. Anshu had multiple bruise marks over her

back, both thighs and the buttocks. She had incised and

lacerated wounds on the hands and the forearms.

25. The beast in the appellant is evidenced by the

injuries he inflicted on his wife Anshu and his minor sister-in-

law Kumari L.

26. In the decision reported as (2008) 2 SCC (Crl.) 550

State of Rajasthan Vs. Madan Singh it was observed as

under:-

"12. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio- economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed objected of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The courts must hear the loud cry for justice by society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs

reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the appellant. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced."

27. In the decision reported as 2008 (2) SCC (Crl.) 541

Ramesh Kumar Vs. State of Haryana it was observed as

under:-

"12. We cannot ignore the fact that the lady was a married person and was tricked to accompany the accused who obviously had an evil design. It cannot be forgotten that the husband of the lady was lured on the evening of the day of occurrence itself taking advantage of his addiction to alcohol and it was then that the lady was lured to come out of the house for taking back her husband who was lying in a drunken state. Here was a defenceless married person who was tricked out of her house taking the advantage of the drunkenness of her husband and then was ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence. It cannot be forgotten that out of three accused persons only one of the accused person has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence."

28. In the decision reported as 2005 SCC (Crl.) 559

State of M.P. Vs. Munna Choubey & Anr. it was observed as

under:-

"9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep- seated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh Vs. State of M.P. this Court while refusing to reduce the death sentence observed thus: (SCC P. 82, para 6)

"It will be a mockery of justice to permit these appellants (the accused) to escape the extreme penalty of law when faced with

such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."

10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal Vs. State of T.N.

11. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.

12. Proportion between crime and punishment is a goal respected in principle and in spite of errant notions, it remains a strong influence in the determination of sentences. The

practice of punishing of serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought than to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."

29. Noting the brutality with which the appellant had

been satisfying his carnal desires and specially noting the

sadistic pleasure derived by him by causing injury with the

hand pump handle on the private parts of his wife and

satisfying his lust by ravishing his minor sister-in-law and

thereafter brutally assaulting both, we see no reason to differ

with the sentence imposed by the learned Trial Judge.

30. The appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE January 19, 2009 mm