Delhi High Court

Chander Pal vs State on 14 May, 2009

Author: Pradeep Nandrajog

i.4
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   CRL.A. 503/2005

%                                        Date of Order: 14th May, 2009

        CHANDER PAL                        ..... 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 INDERMEET KAUR KOCHHAR

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.

1. Noting that Mr. Sumeet Verma Advocate has been

nominated by the Delhi High Court Legal Services Committee to

represent the appellant, we fix his fee at Rs.5,500/-.

2. Heard learned counsel for the parties.

3. Vide impugned judgment and order dated 3.2.2004,

the appellant has been convicted for the offence of having raped

Kumari „N‟ on 4.8.2002 when her mother had awoken from the

slumber and had gone inside the room leaving Kumari „N‟

sleeping on a cot in the verandah outside.

4. The appellant was a tenant in a room in the same

building in which Kumari „N‟‟s father had taken a room on rent.

5. Vide order on sentence dated 6.2.2004, noting that

Kumari „N‟ was a tender girl aged 10 years, the learned Trial

Judge has inflicted the maximum sentence prescribed under

Section 376 (2) (f) IP C i.e. to undergo imprisonment for life and

to pay a fine of Rs.30,000/-; in default of payment of fine to

undergo simple imprisonment for 3 years.

6. It is not in dispute that the FIR in question was

registered belatedly on 11.8.2002.

7. The contemporaneous events which took place on

4.8.2002 are that around 6:00 in the morning, the parents of

Kumari „N‟ noted their daughter bleeding from the vagina. As

recorded in Ex.PW-6/D, the OPD card of the ESI Hospital Basai

Dara Pur New Delhi, Kumari „N‟ had to be given surgical

intervention to stitch a tear in the vagina inasmuch as the

physical examination conducted by the doctor on duty revealed

a tear in the labia minor, extending deep.

8. The young girl informed, as recorded in Ex.PW-6/D,

that she had sustained the injury due to fall in the bathroom; a

fact which was obviously incorrect for the reason the injury

sustained by the young girl could never have been the result of

a fall. It had to be the result of either a forcible sexual

intercourse or somebody piercing a blunt object inside the

vagina of the young unfortunate girl.

9. Either the young girl got encouraged, or somebody

coaxed her to speak the truth. She did so, but only on

11.8.2002. She told her parents that when her mother had left

the cot in the morning and she was sleeping on the cot she

found the appellant forcing himself on her and after removing

her and his undergarments, committed rape upon her.

10. Kumari N‟s father Shambhu Giri PW-2 immediately

took the young girl to the police station where her statement

Ex.PW-1/A was recorded and based thereon the FIR Ex.PW-3/A

was registered.

11. Kumari „N‟ was taken to DDU Hospital for a medico

legal examination at 1:40 PM on 11.8.2002. The MLC Ex.PW-4/A

notes that there was no external bleeding but a tear was

present on the labia minor (inner aspect). It was further noted

that there were no external injuries. The gynecologist noted

that the hymen was torn and there were perineal stitches in the

vagina.

12. The appellant was apprehended on 11.8.2002. His

medical examination was conducted and as recorded in the MLC

Ex.PW-5/A it was opined that the appellant was capable of

performing sex.

14. Kumari „N‟ was examined as PW-1. She deposed that

on the 4th of August (year she did not remember) she was

sleeping on the cot in the verandah and the accused came

there. After removing her and his undergarments, committed

rape upon her and at that point he had pressed her mouth. She

stated that the incident took place in the morning at around

5/5:30 AM. She was taken to a medical hospital where she

remained admitted for 3/4 days.

15. Kumari „N‟ was cross examined. The thrust of the

cross examination appears to be to test the memory of the

young girl. She was question as to where she was residing. She

was questioned with reference to the topology of her house and

the number of persons staying in the house. She was

questioned as to where she and her other family members used

to sleep. She was questioned where Vijay, son of the landlord

used to sleep. We note that she answered the questions with

candour expected from a child aged 11 years (the age when the

young child was examined in Court).

16. Not being able to demolish the testimony of the

young victim, a suggestion was given to her that she was

tutored by her parents and that her parents and the IO were in

fact wanting to save Vijay, the son of the landlord or to grab

money from the parents of the accused; suggestions which were

denied by the young girl.

17. Shambhu Giri PW-2, the father of the young girl

deposed that on 4.8.2002 at around 8:00 AM he was present in

the house and was taking tea. He saw his daughter bleeding

and took her to ESI Hospital where she remained for 3 days. He

stated that he made enquiries from her and she disclosed to him

on 11.8.2002 that Chander Pal had raped her at which he

immediately reported the matter to the police.

18. Shambhu Giri has been cross examined. We find not

a suggestion given to him that he had got lodged a false case

against the accused or that he was wanting to extract any

money, much less Rs.50,000/- from the accused.

19. SI Ravi Shankar PW-7, the IO deposed facts relating

to the investigation conducted by him, which we note is

restricted to seizing the medical record of Kumari „N‟ when she

was treated at ESI Hospital and thereafter getting her examined

at DDU Hospital.

20. Suffice would it be to note that no suggestion has

been given to SI Ravi Shankar that he was instrumental in

lodging a false case against the appellant.

21. Thus, the defence of false implication must fail.

22. The only question which needs to be considered is

whether Kumari „N‟ needs to be believed.

23. A rape victim is not an accomplice. It is settled law

that the testimony of a rape witness has to be treated at par

with the testimony of an injured victim. Even uncorroborated

testimony of a rape victim has to be accepted if it passes the

test of clarity and inspires the judicial conscious of the Court.

24. That Kumari „N‟ was raped is evidenced from her MLC

Ex.PW-4/A as also the OPD card Ex.PW-6/D. Who raped her has

surfaced from her mouth. We see no reason why Kumari „N‟

would be falsely implicating the appellant. We further note that

Shambhu Giri PW-2, the father of the young victim has deposed

that after his daughter was discharged from the ESI Hospital, in

the house, she disclosed to him that Chander Pal had raped her.

Said testimony of Shambhu Giri has gone unchallenged during

cross examination.

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

Judge that the evidence on record establishes that the appellant

committed rape upon Kumari „N‟ who was aged between 10 to

11 years when the offence took place.

26. On the issue of sentence, we notice, as in the instant

case, in cases of child rape, mechanically sentence of

imprisonment for life is being imposed by most Trial Judges.

27. In a decision dated 23.3.2009 in Crl.A.No.335/2005

Prabhu Nath Vs. State decided by a Division Bench of this Court,

pertaining to a child victim aged 8 years and the accused being

between 19 to 20 years, sentence of imprisonment for life was

converted into a sentence to undergo rigorous imprisonment for

10 years.

28. Decisions on the subject were noted. The view taken

(containing the reasoning therein), is as under:-

"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."

29. In the instant case, the age of the appellant is 26

years as on the date of the incident. Save and except that the

victim was a child, no other aggravating factors are noted.

Thus, we are of the opinion that instant case also requires

corrective sentencing action to be taken in appeal.

30. We dispose of the appeal affirming the conviction but

modifying the sentence imposed upon the appellant directing

that the appellant shall undergo rigorous imprisonment for a

period of 10 years and shall pay a fine as directed to be paid by

the learned Trial Judge with modification that in default of

payment of fine he shall undergo simple imprisonment for 6

months.