Prabhu Nath vs State
2009 Latest Caselaw 935 Del

i.1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Date of Decision : 23rd March 2009


+                    CRL.A. 335/2005



       PRABHU NATH                            ..... Appellant
               Through:         Mr.Sumeet Verma, Advocate.

                     versus

       STATE                                 ..... Respondent
                     Through:   Ms.Richa Kapoor, Advocate.



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

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

Crl.M.(B.) No.305/2009

1. Application seeking suspension of sentence is listed

today for hearing. Learned counsel for the appellant states

that if the appeal itself is heard he does not press the

application seeking bail.

2. Both counsel agree that the appeal be heard right

now.

3. Application for bail is disposed of as infructuous.

Crl.Appeal No.335/2005

1. Noting that Mr.Sumeet Verma, Advocate is

appearing as an Amicus Curiae nominated by the Delhi High

Court Legal Services Committee we fix his fee at Rs.5,000/-.

2. It is not in dispute, and indeed said fact has not

been challenged, that the appellant was apprehended at the

spot and along with the prosecutrix was sent for medical

examination and as per MLC Ex.PW-3/B blood was found on his

glans penis. It is also not in dispute that the underwear of the

prosecutrix was found stained with blood. It is also not in

dispute that the prosecutrix was aged about 8 years. The

report Ex.PW-13/F shows that the vaginal swab of the

prosecutrix was detected with semen. As per report Ex.PW-

13/G the swab of blood lifted from the glans penis of the

appellant was detected with human blood, group whereof

could not be ascertained.

3. Manwati PW-1 is the witness for the prosecution

who has proved that the appellant was a tenant under her and

at around 8.00 PM on the day of the incident she heard cries of

her daughter. The same were coming from the room of the

appellant. She reached there and saw that the accused had

removed the underwear of her daughter and was raping her.

Kamlesh, a lady who lives in the adjoining building also got

attracted to the room on hearing the cries and on reaching

there saw Manwati present. She saw the prosecutrix bleeding

from her vagina. She saw the police take the prosecutrix and

the appellant to the hospital.

4. Faced with the aforesaid evidence of the appellant

being apprehended at the spot, literally with his pants down

which we incidentally note were also stained with blood,

learned counsel for the appellant concedes that he has no

scope to make any submission qua the conviction of the

appellant but urges that the sentence of imprisonment for life

is disproportionate. Counsel urges that it is true that the

prosecutrix was 8 years but wants this Court to take into

account that even the appellant was aged about 19 - 20 years

when he committed the offence and that the nominal roll sent

by the jail authorities do not evidence any bad conduct in the

jail; on the contrary shows that the appellant, due to good

conduct has earned a remission of 2 years and 10 days as on

12.2.2009.

5. In the decision reported as AIR 1974 SC 799 Ediga

Anamma vs. State of A.P. it was opined that the young age of

an offender is a mitigating factor while considering the

quantum of sentence. The reason is obvious. A person is

immature in his youth; meaning thereby the person cannot

form a rational decision with respect to the culpability of his

conduct, of course he knows that what he is doing is wrong.

We have our doubt whether good conduct in jail is a mitigating

factor. We find no precedent to support the same. Post

offence conduct of remorse being shown by the accused is a

mitigating factor as observed in the decision reported as Re.

Rock 2008 All E.R. 290. The helplessness of the victim and

that the victim is vulnerable i.e. a child being the victim is an

aggravating circumstance on the quantum of sentence.

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.

11. Copy of this order be sent to the Superintendent,

Central Jail, Tihar for necessary action.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

MARCH 23, 2009 Dharmender