Delhi High Court

Tapan Biswas vs State on 24 July, 2009

Author: Pradeep Nandrajog

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : July 24, 2009

+                  CRL. APPEAL NO.859/2008

       TAPAN BISWAS                      ...Appellant.
                Through : Mr. Rajesh Mahajan, Advocate


                             VERSUS

       STATE                                ...Respondent
                   Through : Mr. Pawan Sharma, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers 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)

Crl.M.B.No.840/2009

Learned counsel for the appellant states that if this

Court would hear the appeal today itself, he would not press

the applications seeking suspension of sentence. Learned

counsel for the State responds that let the appeal be heard

today itself.

Crl.M.B.No.840/2009 is accordingly dismissed as

infructuous since the appeal itself is being heard for disposal

and prayer made in the application is to suspend the sentence

imposed upon the appellant till the appeal is heard.

Crl.A.No.859/2008

1. The appellant has been convicted for the offence of

having raped Kumari „K‟. Vide order dated 15.12.2007 he has

been sentenced to undergo imprisonment for life and pay

compensation in sum of Rs.25,000/- to the victim for the

offence of rape.

2. In view of the MLC Ex.PW-1/A of Kumari „K‟ and

the testimony of Dr.Pankaj PW-1 who had examined Kumari „K‟

at 11:00 PM on 15.6.2004 as also Ex.PW-14/A and Ex.PW-15/B-

1 to Ex.PW-15/B-7 and the testimony of Dr.Swati Devikar PW-

15 wherefrom it is apparent that Kumari „K‟ was raped and had

suffered a vaginal tear, learned counsel for the appellant

concedes that there is clinching evidence to establish that

Kumari „K‟ was subjected to a sexual assault on 15.6.2004.

3. Thus, two questions need consideration in the

appeal. Firstly, whether the finding returned by the learned

Trial Judge that the appellant is the perpetrator of the crime is

correct; and secondly, whether the sentence of imprisonment

for life imposed is excessive and the sentence needs

corrective action. Needless to state, the second question

needs to be addressed and answered depending upon the

answer to the first question.

4. This takes us straight away to the testimony of the

child witness Kumari „K‟ who was examined as PW-3.

5. When she deposed in Court on 29.11.2004, Kumari

„K‟ was aged 10 years and after putting questions to her and

eliciting the response, the learned Trial Judge has recorded a

satisfaction that Kumari „K‟ is capable of understanding the

questions put to her. Thereafter, Kumari „K‟ has been

examined. She deposed that the appellant was known to her

being a neighbour. Her bhabhi had brought her to Delhi from

the village and had to go to the village as her father had died

and she had stayed in the house of the appellant for about a

month. Her bhabhi returned from the village about a month

prior to the incident and she went back to the house of her

bhabhi. On 15.7.2004 she went to the temple and met the

appellant who told her that her bhabhi was calling her home.

The appellant took a short cut from the park and inside the

park pushed her on the ground and removed her frock and

underwear. He inserted two fingers in her private parts and

thereafter removed his pant and committed rape. He left her

threatening her not to disclose the incident to anyone. On

reaching home she told her bhabhi who took her to the

hospital.

6. Kumari „K‟ was cross examined and a suggestion

was put to her that she was employed by the appellant and

pertaining to a dispute qua wages she was falsely implicating

the appellant. Kumari „K‟ denied the suggestion.

7. We may note that nothing has been pointed out to

us with reference to the cross examination of Kumari „K‟

wherefrom it can be said that Kumari „K‟ is telling a lie.

8. Konika Biswas PW-4, the bhabhi of Kumari „K‟

deposed that Kumari „K‟ is the daughter of her paternal uncle

and she had brought him to Delhi. When her father died she

left for the village and at the request of the wife of the

appellant left Kumari „K‟ in their house. She returned to Delhi

about a month prior to the date of incident and brought back

Kumari „K‟ to her house. At around 7:30 PM, on 15.6.2004,

Kumari „K‟ left for the temple and at about 9:00 PM Kumari „K‟

returned with blood oozing from her private parts. Kumari „K‟

disclosed that the appellant had raped her. She took Kumari

„K‟ to the hospital. Police was informed of the incident and she

and Kumari „K‟ gave statements before the police.

9. We may note that the FIR Ex.PW-6/A has been

registered at 2:20 AM i.e. during the intervening night of 15 th

and 16th June, 2004. The FIR names the appellant as the

accused.

10. The testimony of Kumari „K‟ and her bhabhi

establish the accomplicity of the appellant and defence of false

implication is but a theory propounded/projected by the

appellant.

11. To reassure ourselves we have perused Ex.PW-4/A

the statement of PW-4 recorded by the IO pursuant whereto

the FIR was registered. The same evidences that the

statement of PW-4 was recorded at the hospital and was

dispatched to the police station at 2:00 in the night and FIR

was registered at 2:20 in the night. In her statement Ex.PW-

4/A the appellant has been named as the perpetrator of the

crime. So soon after the incident has the appellant been

named that it renders highly improbable of his being falsely

implicated.

12. We concur with the view taken by the learned Trial

Judge that the evidence establishes the guilt of the appellant.

13. On the issue of imposing a sentence, we note that a

Co-ordinate Bench of this Court had discussed the sentencing

policy. The decision is reported as 2006 (1) JCC 404 Jagdish

Vs. State. The said decision and another decision reported as

2007 (97) DRJ. 403 Virender Nanda Vs. State was noted by

another Division Bench of which one of us namely Pradeep

Nandrajog, J. was a member of. In the said decision dated

23.3.1999 in Crl.A.No.335/2005 Prabhu Nath Vs. State it was

observed as under:-

"6. The penal code prescribes the maximum punishment for rape as imprisonment for life. Thus, the legislative intent is that in extreme cases of rape sentence to be imposed should be of imprisonment for life. Obviously, in cases less than the extreme, the sentence has to be less. What would be the instances of extreme cases of rape? First and foremost would be the acts of brutality which may accompany a rape. The second would be the trauma inflicted, other than the trauma of rape, for example where the rape victim is beaten or threatened with death, is battered etc. The third would be where the offender is in a dominating position and breaches the confidence of a victim for example, in near relation of the victim being the offender.

7. Lack of previous criminal record is also a mitigating factor.

8. Noting that the appellant has no previous criminal record and was aged about 19 - 20 years at the time of the crime being committed, we are of the opinion that the sentence of imprisonment for life imposed upon the appellant needs to be reduced to rigorous imprisonment for 10 years.

9. In the decision reported as 2006 (1) JCC 404 Jagdish Vs. State, the prosecutrix was aged 11 years and the accused was a youth aged 19 years. Sentence to undergo imprisonment for life was reduced to 10 years and a fine of Rs.30,000/-; in default of payment of fine to undergo simple imprisonment for one year. In the decision reported as 2007 (97) DRJ 403 Virender Nanda vs State, the prosecutrix was aged 6 years and the accused was a youth, but age not recorded. Sentence to undergo imprisonment for life was reduced to 10 years and a fine of Rs.10,000/-; in default of payment of fine to undergo simple imprisonment for two years.

10. We accordingly dispose of the appeal maintaining the conviction of the appellant but modifying the sentence awarded and direct that the appellant shall undergo rigorous imprisonment for a

period of 10 years and shall pay a fine of Rs.30,000/-. The fine, if realized, shall be paid over to the victim. If the fine is not paid, the appellant shall undergo simple imprisonment in default of payment of fine for a period of two years."

14. Noting the young age of the appellant and

adopting the reasoning in Prabhu Nath‟s case (supra), we

dispose of the appeal sustaining the conviction of the

appellant but reduce the sentence for the offence punishable

under Section 376 IPC from imprisonment of life to undergo

rigorous imprisonment for a period of 10 years. The

compensatory fine imposed upon the appellant is maintained.

The sentence for the offence under Section 506 IPC, which

needless to state runs concurrently, is sustained.

15. Copy of this decision be sent to the Superintendent

Central Jail Tihar who is directed to hand over the same to the

appellant and also make necessary corrections in the jail