Bhagwan Dass @ Mittu vs State
2009 Latest Caselaw 4741 Del

               HIGH COURT OF DELHI: NEW DELHI
+             CRL. APPEAL NO. 222/2001 &
              CRL. APPEAL NO. 262/2001
%             Judgment reserved on: 11th November, 2009
              Judgment delivered on: 20th November, 2009

BHAGWAN DASS @ MITTU                   ..... Appellant
               Through: Mr. Vineet Malhotra, Mr. K.
                        Singhal and Mr. Shanker
                        Chhabra, Advs.
                Versus
STATE                                .....Respondent
               Through: Mr. Lovkesh Sawhney, APP

                            WITH


VINOD KUMAR @ BITTU                      .......Appellant
                 Through: Mr. Vineet Malhotra, Mr. K.
                          Singhal and Mr. Shanker
                          Chhabra, Advs.
                  Versus

STATE                                              .....Respondent
                            Through: Mr. Lovkesh Sawhney, APP

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?            Not
                                                         necessary

       2. To be referred to Reporter or not?             Not
                                                         necessary

       3. Whether the judgment should be
          reported in the Digest?                        Not
                                                         necessary


CRL. APPEAL NOS. 222/2001 & 262/2001                    Page 1 of 30
 A.K. PATHAK, J.

1. Vide judgment dated 24th March, 2001 learned

Additional Sessions Judge, Delhi, convicted appellants

namely Bhagwan Dass @ Mittu and Vinod Kumar @ Bittu

along with their co-accused Ghanshyam (since deceased),

under Sections 366 and 376(2)(g) of the Indian Penal Code

(for short hereinafter referred to as "IPC"); by an order dated

26th March 2001 appellants had been sentenced to face

rigorous imprisonment for ten years and to pay fine of Rs.

5,000/- each and in default of payment of fine to further

undergo rigorous imprisonment for the period of two years

each for the offence under Section 376(2)(g) IPC; to further

undergo rigorous imprisonment for seven years and to pay

fine of Rs. 4,000/- each under Section 366 IPC and in default

of payment of fine to further undergo rigorous imprisonment

for a period of eighteen months each. Both the sentences

were directed to run concurrently.

2. Aggrieved by their conviction and sentence, appellants

have preferred the present appeals. Since both the appeals

arise from the same judgment and order on sentence, they

are being disposed of together.

3. Briefly stated, prosecution case is that on 20th April,

1983, the prosecutrix and her younger sister were alone in

their house, as their parents had gone to their native place.

At about 11:30 pm accused Vinod Kumar @ Bittu and

Ghanshyam knocked the door. On prosecutrix opening the

door, at the instance of accused Vinod Kumar @ Bittu,

accused Ghanshyam asked her to accompany them and

when she resisted, accused Ghanshaym took out a knife

from the pocket of his pyjama and threatened her with dire

consequences. Prosecutrix got frightened and accompanied

them. Accused Ghanshyam also threatened the sister of

prosecutrix that in case she raised alarm or informed about

this to anyone, she would be killed. Outside the house,

accused Bhagwan Dass @ Mittu and Lal Babu (P.O.) also

joined them. They took the prosecutrix to the house of

accused Ghanshyam, where accused Bittu remained

downstairs while the remaining accused took the prosecutrix

to the second floor through the back staircase of the said

house. Accused Bhagwan Dass @ Mittu gagged the mouth

of prosecutrix; whereas accused Lal Babu caught hold of her

hands and made her to lie on the floor. Accused Ghanshyam

removed salwar and underwear of prosecutrix and at that

stage accused Bhagwan Dass @ Mittu and accused Lal Babu

went out. Accused Ghanshyam committed rape upon the

prosecutrix. Prosecutrix gave a fist blow on the chest of

accused Ghanshyam at which he gave a fist blow on the face

of prosecutrix below her eye, resulting in injury to her. She

also bit the accused Ghanshyam on his chest. When

prosecutrix resisted, accused Ghanshyam took out a knife

and pointed it towards her and when she tried to catch the

knife she sustained injuries on index finger of her right hand.

On seeing blood oozing out from her finger she got dead

frightened. Prosecutrix also sustained bruises on her elbows

while putting up resistance. On hearing some noise coming

from the gali, accused Ghanshyam left her and went away.

Thereafter, prosecutrix wore her clothes and returned to her

house after jumping the partition wall of the neighbouring

house. In the morning she went to her sister‟s house at

Jhandewalan and disclosed the incident to her. Thereafter

prosecutrix along with her brother-in-law and sister went to

Police Post Rajinder Nagar and made a statement before Sub

Inspector Pishori Lal.

4. On the basis of statement of proseuctrix, SI Pishori Lal

(hereinafter referred to as I.O.) wrote a rukka and pursuant

thereof FIR No. 101/83 was registered at Police Station

Rajinder Nagar under Sections 376/506 read with 34 IPC.

Prosecutrix was sent to Lok Nayak Jai Prakash Hospital

(L.N.J.P.) for medical examination where factum of rape was

confirmed. Underwear and salwar of the prosecutrix were

also taken in possession and sealed.

5. Statement of prosecutrix under Section 164 Cr.P.C. was

recorded before the Metropolitan Magistrate. During the

investigation, shawl of the prosecutrix was seized from the

spot. Accused persons were arrested. Accused Ghanshaym

got recovered the knife from a trunk lying in his house which

was seized vide a seizure memo. Accused Ghanshyam was

also got medically examined. His semen sample was taken;

his underwear and pyjama, which he was wearing at the

time of arrest, were also seized. Pyjama, underwear and

semen sample of the accused along with salwar, underwear

and vaginal swab of the prosecutrix were sent to Central

Forensic Science Laboratory (CFSL), Delhi and its report was

obtained. Statement of witnesses were recorded by the I.O.

6. After completion of investigation, charge sheet was

filed in the court of learned Metropolitan Magistrate, who

took cognizance of the offence and after supplying the

copies of the documents to the accused persons, committed

the case to the Sessions court for trial as offences under

Section 366/376 IPC are exclusively triable by the Sessions

Court.

7. Charges under Sections 452/366/506/376(2)(g) read

with Section 34 IPC were framed against the appellants and

accused Ghanshyam. Separate charge under Section 27 of

the Arms Act was also framed against the accused

Ghanshyam. Accused persons pleaded not guilty and

claimed trial.

8. During trial, prosecution examined fifteen witnesses in

all. Prosecutrix was examined as PW1. Her sister Ms. Asha

Rani was examined as PW2. Brother-in-law of the

prosecturix namely Ashok Kumar was examined as PW3.

Shri Fauja Singh, father of the prosecutrix, was examined as

PW6. SI Pishori Lal, who had investigated the case, was

examined as PW15. Other witnesses are formal in nature

either being police officials or doctors.

9. After prosecution closed evidence, statement(s) of the

accused persons under Section 313 Cr.P.C. were recorded.

Accused persons denied their complicity in the crime and

claimed themselves to be innocent. Accused Vinod Kumar @

Bittu stated that he was innocent and had been falsely

implicated. No reason was given by him as to why he was

falsely implicated. No defence evidence was lead by him.

Accused Bhagwan Dass @ Mittu also took similar plea, which

was taken by the accused Vinod Kumar @ Bittu. He also did

not lead any evidence in his defence.

10. After hearing the arguments of learned counsel for

accused persons and scrutinizing the entire ocular and

documentary evidence on record, learned Additional

Sessions Judge held that the testimony of prosecturix was

trustworthy and reliable, inasmuch as her testimony was

supported by both the medical and scientific evidence.

Learned Additional Sessions Judge concluded that the

prosecution had succeeded in proving its case beyond the

shadow of reasonable doubt that the accused persons had

forcibly taken the prosecutrix from her house, in furtherance

of their common intention, whereafter, prosecutrix was

raped by accused Ghanshaym in his house with the help of

other co-accused persons namely Vinod Kumar @ Bittu and

Bhagwan Dass @ Mittu. Learned Additional Sessions Judge

held that intention of all the accused persons, as it was

borne out from the record, was to abduct the proseuctrix for

the purpose of sexual assault. Consequently, appellants

along with accused Ghanshyam were convicted under

Section 366 as well as 376(2)(g) IPC.

11. As per learned Additional Sessions Judge, minor

discrepancies, as pointed by the learned counsel in the cross

examination of the prosecutrix, had no bearing on the merits

of the case. Plea taken by the learned counsel for the

accused that there was delay in lodging the FIR was also not

acceptable as incident took place in the middle of night,

inasmuch, as the prosecutrix had returned home at about

2:00 am, at which point, she was not expected to go to

Police Station to lodge a complaint, more so when there was

no male member available in the house. In the morning she

went to her sister‟s house and thereafter to the Police

Station and her this conduct was quite natural.

12. I have perused the testimony of prosecutrix PW1 and

find the same to be trustworthy and reliable. Her testimony

had remained unshattered in her cross examination on

material points. Her version is also corroborated from the

medical evidence as injury/bruises were found on her face

and elbows. Semen found on her underwear was of the

same group which was found on the underwear of the

accused Ghanshyam i.e. „A‟ group. However, I am of the

view that so far as accused Vinod @ Bittu is concerned, he is

entitled to benefit of doubt as far as offence under Section

376 is concerned, as prosecutrix had given different versions

at different stages of investigation and the trial, as regards

his presence at the time of rape. In the FIR she had stated

that accused Bittu remained downstairs while the other

accused took her to second floor; in her statement under

Section 164 Cr.P.C. she stated that Bittu was asked to go to

back by the accused Ghanshyam while they were on their

way to the house of Ghanshyam; but in her deposition in the

court, she stated that accused Bittu also went upstairs.

13. So far as kidnapping is concerned, from the testimony

of PW1 it is clear that accused Bittu, accused Mittu along

with their co accused Ghanshyam and Lal Babu had

kidnapped the prosecutrix knowingly well that prosecutrix

may likely to be forced or seduced to illicit intercourse. So

far as accused Mittu is concerned, he had even played overt

acts while accused Ghanshyam forcibly raped the

prosecutrix.

14. Prosecutrix PW1 has categorically deposed that on 20th

April, 1983, she along with her younger sister was alone in

the house when at about 11:30 pm someone had knocked

the door, on inquiring as to who was at the door, accused

Bittu responded by saying that he had some work with her.

After prosecutrix opened the door Ghanshyam and Vinod

Kumar @ Bittu were found standing there; appellant

Ghanshyam asked her to accompany them and when she

showed reluctance he took out a knife from his pyjama and

threatened that if she did not accompany them he would kill

her and her sister. She as well as her sister got scared and

started weeping. Accused Ghanshyam kept the knife at her

back and ordered her to move. He also threatened her sister

to stop weeping, otherwise, she would be done to death. At

some distance she saw accused Lal Babu and Mittu and they

also joined them. Accused Lal Babu (P.O.) and Mittu started

walking ahead of her; while accused Ghanshyam and

accused Bittu were following her, with the knife at her back.

The accused took her to the second floor of the house of

accused Ghanshyam from the back stair case of the said

house. Lal Babu muffled her face with his hands while

accused Mittu caught hold of her legs. Thereafter accused

Ghanshyam forcibly opened her salwar and underwear.

After her clothes were removed other accused persons went

out and accused Ghanshyam put his hand on her mouth.

Prosecutrix gave a blow on the chest of accused Ghanshyam

at which he gave a blow on her left cheek. Accused

Ghanshyam pulled out a knife and when she tried to catch

the knife she received injuries on index finger of her right

hand. Then accused Ghanshyam committed rape upon her.

She raised alarm. Someone shouted from the downstairs, at

which accused Ghanshyam got up and went out. She also

put her underwear and salwar and came back to her house.

Since it was night time and she as well as her sister were

terrified, they remained in the house. In the morning

prosecutrix went to her sister‟s house and narrated the

incident to her sister and thereafter she along with her sister

Smt. Raj Rani and her sister‟s husband Mr. Ashok Kumar

went to Police Post. Her this statement has remained

unshattered in her cross examination on material points. No

material discrepancy could be pointed out in her statement

by the learned counsel for the accused, with regard to her

version about her kidnapping by the accused persons and

her being raped by accused Ghanshyam with the help of co-

accused Mittu.

15. Her testimony with regard to her kidnapping from her

house by the accused Bittu, Mittu and co-accused

Ghanshyam had been consistent throughout. Her version

that accused Bittu and Ghanshyam had come to her house

at about 11:30 PM, and knocked the door; after she opened

the door, accused Bittu and Ghanshyam took her with them

at the point of knife, with the help of accused Mittu and Lal

Babu, has remained unshattered. From her statement it is

clear that accused Bittu, Mittu along with accused

Ghanshyam and accused Lal Babu (P.O.) took the prosecutrix

from her house to the house of accused Ghanshyam at the

point of a knife. It is apparent from her testimony that all

the accused surrounded her while taking her from her house

to the house of accused Ghanshyam. It is also apparent

from her cross examination that accused persons took her

from her house, up to the house of accused Ghanshyam,

from the back gali and not from the main road. From the

conduct of accused persons it is clear that they were sharing

common intention of kidnapping the prosecutrix. She was

taken away from her house to the house of accused

Ghanshyam, in odd hours of night i.e. at about 11:30 pm,

through the back gali at the point of knife. This conduct of

theirs is sufficient enough to impute knowledge on their part

that the prosecutrix was likely to be forced to sexual

intercourse; Even more so, when prosecutrix was in fact

subsequently raped by the accused Ghanshyam at the

second floor of his house with the active help of accused

Mittu. Accordingly, I am of the view that learned Additional

Sessions Judge has rightly convicted both the appellants

persons for the offence under Sections 363/34 of Indian

Penal Code.

16. I do not find any force in the arguments of learned

counsel that the accused Bittu was not sharing common

intention vis a vis main accused Ghanshyam. It was

contended by learned counsel that accused Bittu was not

aware that accused Ghanshaym was having a knife and that

he would threaten the prosecutrix; That accused Bittu had

not played any overt act while accused Ghanshyam took the

prosecutrix with him to his house. Initially in the statement

made under Section 161 Cr.P.C. prosecutrix stated that

accused Bittu had remained outside the house; whereas

while making a statement before the Magistrate under

Section 164 Cr.P.C. she stated that accused Bittu was sent

back by the accused Ghanshyam from midway. While

deposing in the court prosecutrix stated that accused Bittu

had come up to the second floor and caught hold of her

hands. According to the learned counsel this is a material

discrepancy with regard to the previous statement of the

prosecutrix. He has further contended that in her statement

under Section 164Cr.P.C. as well as in her deposition in the

court, prosecutrix had stated that someone shouted from

downstairs as to who was raising alarm upstairs, at which

accused Ghanshyam got up and went away and she also put

on her underwear and salwar and jumped over the roof of

the adjoining house and from there she returned to her

house. This, according to the learned counsel, clearly

showed that she was a consenting party. She had

accompanied accused Ghanshyam to his house and when

one of the neighbours noticed this, she ran away from there

after jumping the partition wall. I do not find any force in

this contention of learned counsel for the accused Bittu. As

far as role of accused Bittu with regard to kidnapping of

prosecutrix is concerned, the same has been clearly

specified by the prosecutrix and is consistent in all her

statements i.e. statement under Section 154 Cr.P.C.,

statement under Section 164 Cr.P.C. as well as her

statement made on oath in the court, during the trial. She

has consistently stated that someone had knocked the door

and when she enquired as to who was at the door, accused

Bittu spelled out his name and told that he had some work

with her. After prosecutrix opened the door, accused

Ghanshyam asked her to accompany them at point of knife.

He also threatened to kill her and her sister. Thereafter,

accused persons took her to the house of accused

Ghanshyam. It is apparent from the testimony of

prosecutrix that all the accused were together while they

took the prosecutrix from her house to the house of accused

Ghanshyam. So far as incident of kidnapping is concerned,

her testimony is consistent against all the accused persons

including accused Bittu.

17. However, in my view, accused Bittu is entitled to

benefit of doubt as far as his participation in the offence of

rape is concerned. In FIR prosecutrix stated that accused

Bittu had accompanied other accused persons up to the

house of Ghanshyam but remained downstairs. In her

statement under Section 164 Cr.P.C. she deposed that

accused Bittu was asked by the co-accused Ghanshaym to

go back, while they were on their way from her house to the

house of accused Ghanshyam. In her statement in the court,

prosecutrix deposed that accused Bittu had played an overt

act while she was being raped by accused Ghanshyam.

According to her, accused Bittu caught hold of her hands

before she was pinned down on the floor. Three different

versions were given by her as to the role of accused Bittu

with regard to the offence of rape committed by accused

Ghanshyam. So far as offence under Section 376 IPC is

concerned, it can be said that accused Bittu did not play any

overt act. It cannot be said that accused Bittu was sharing

common intention with accused Ghanshyam while he

actually committed rape upon the prosecutrix. For the sake

of arguments even if it is presumed that he was sharing

common intention with accused Ghanshyam with regard to

rape of the prosecutrix initially but he had withdrawn from

the actual act midway. For this reason accused Bittu is

entitled to benefit of doubt with regard to his complicity in

the said offence of rape.

18. Learned counsel for accused Mittu has argued that the

offence was committed on 20th April, 1983. Section

376(2)(g) was substituted by way of Criminal Law

(Amendment) Act 43 of 1983 on 25th December, 1983. Under

the unamended Act, there was no provision of "gang rape".

Accordingly, accused Mittu could not have been convicted

and sentenced by the learned Additional Sessions Judge

under Section 376 (2)(g) of the Indian Penal Code. He has

further contended that in view of the Article 20(1) of the

Constitution, accused, Mittu could not have been convicted

under Section 376(2)(g) of the Indian Penal Code, as the said

provision was not in existence in the statute book as on the

date of commission of offence, which took place on 20th

April, 1983. Minimum punishment as prescribed under

Section 376(2)(g) could not have been awarded to the

accused as the same was not prescribed under the

unamended provision of Section 376 IPC. He has further

contended that at the most accused Mittu could not have

been convicted under Section 376 IPC by taking aid of

Section 34 of IPC. According to him, in the facts of this case,

Section 34 of IPC was not attracted since no evidence had

come on record to show that the accused Mittu was sharing

common intention with accused Ghanshyam, Bittu and Lal

Babu (P.O.) either in the forceful kidnapping of prosecutrix or

in the rape committed by accused Ghanshyam. He has

contended that the liability of one person for an offence

committed by another in the course of crime committed by

several persons arises under Section 34 IPC only if this is

done by them in furtherance of their common intention to

commit such a crime. Prosecution has to show that all the

accused were acting in furtherance of their common

intention. Prior meeting of mind between the accused

persons to commit a particular crime has to be shown by the

prosecution by leading cogent evidence before Section 34 of

IPC is employed in a given case. He has placed reliance on

Daya Shanker vs. State of M.P. reported in 2009(1)

Scale 665 and Sripathi & Ors. vs. State of Karnataka

reported in 2009(5) Scale 5.

19. Learned counsel has contended that from the

statement of prosecutrix it is clear that accused Mittu had

not accompanied accused Ghanshyam and accused Bittu

while they knocked the door of the house of prosecutrix.

Accused Mittu had not uttered a word while prosecutrix was

taken from her house to the house of accused Ghanshyam.

Merely because accused Mittu was going in the gali ahead of

the prosecutrix by itself would not be sufficient to show that

accused Mittu was sharing the common intention with other

accused persons to kidnap her. He has further contended

that prosecutrix has given different statement with regard to

the role of accused Mittu at different stages of investigation

and trial. Initially, she stated that accused Mittu was with

other accused persons when prosecutrix was taken to the

second floor and he had also gagged her mouth.

Subsequently, she stated that accused Mittu caught hold of

her hands. Lastly, while deposing in the court, she stated

that accused Mittu remained at the ground floor while she

was taken to second floor by other three accused persons.

Later, accused Mittu came at the second floor and caught

hold of her legs. According to the learned counsel, these are

material discrepancies in her statements, with regard to the

role played by accused Mittu.

20. I do not find any force in the contention of learned

counsel for the accused Mittu, that version of the prosecutrix

cannot be relied regarding the role played by the accused

Mittu. Prosecutrix has categorically stated that accused

Mittu was outside her house; Accused Ghanshyam put a

knife on her back; accused Mittu and Lal Babu started

moving ahead her while Bittu and Ghanshyam were behind

her. It is also evident from the testimony that the accused

Mittu had accompanied the other person not only up to the

house of accused Ghanshyam but had also gone upstairs

and played active role while accused Ghanshyam raped the

prosecutrix. Merely because at some stage she had deposed

that accused Mittu caught hold of her mouth and

subsequently, she deposed that accused Mittu caught hold

her hands and thereafter, that accused Mittu caught hold of

her legs, would not make much difference, keeping in view

her traumatic mental stage when rape was being committed

upon her. One thing is clear from the statement of

prosecutrix that accused Mittu had not only participated in

the act of kidnapping but also played overt act while accused

Ghanshyam committed rape. The common intention on the

part of accused Mittu in kidnapping and also in rape can

safely be inferred from the manner in which the crime was

committed. The fact that accused Mittu remained present

with other accused persons since the beginning, itself shows

that he was sharing common intention with the main

accused Ghanshyam. The judgments relied upon on this

point, are in different facts and are of no help to the

appellant. But in the said cases, no overt act was played by

the accused. The accused in the said cases was mere

spectator. In this case, accused Mittu had played active role

in the offence of kidnapping as also in the rape.

21. However, I find force in the contention of the learned

counsel that accused Mittu could not have been convicted

under Section 376(2)(g) of the Indian Penal Code. Sub

Section 2 of Section 376 was substituted by way of

amendment Act 43 of 1983 with effect from 25th December,

1983; whereas offence was committed in the month of April,

1983.

22. Sub Section 2 of Section 376 IPC reads as under:-

"Whoever, - (g) commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either d3escription for a term of less than ten years.

Explanation 1. - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section.

Explanation 2.- "Women‟s or children‟s institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows‟ home or by any other name, which is established and maintained for the reception and care of woman or children." Explanation 3 - "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

23. "Gang rape" was defined as well as minimum sentence

of ten years was prescribed by way of insertion of sub-

Section 2 in the Section 376 of the Indian Penal Code, by

way of amendment. This provision came into force with

effect from 25th December, 1983. Occurrence in this case

took place on 20th April, 1983.

24. Article 20 of the Constitution reads as under :-

"(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself."

25. Article 20 (1) of the Constitution makes it clear that a

person can only be convicted for offence which was in force

at the time of commission of such offence. Offence of gang

rape was not available under Section 376 of IPC at the time

when offence of rape was committed in this case.

Accordingly, accused Mittu could not have been convicted

under Section 376 (2)(g) of the Indian Penal Code.

26. In somewhat similar circumstances the Supreme Court

in Naresh Kumar vs. State of Maharashtra reported in

AIR 1980 SC 1168 upheld the conviction of the accused

under Section 376/34 IPC.

27. In the light of above discussions, order of conviction

dated 24th March, 2001 is modified. Accused Vinod Kumar @

Bittu and Bhagwan Dass @ Mittu are convicted under Section

366/34 IPC. So far accused Mittu is concerned, he is also

convicted under Section 376/34 IPC. Appellant Bittu is

acquitted for the offence under Section 376 IPC.

28. Learned counsel for Bittu has contended that the

accused Bittu was arrested on 27th April, 1983. After one

and half month he was granted bail. On 24th March,

accused Bittu was again sent to jail and thereafter he was

released on bail on 11th February. Thus he remained in jail

for about two years. Accused Bittu was young in age at the

time of commission of offence. After accused was released

on bail He got married and is now having three children aged

from seven years to sixteen years. All the children are

school going. Widowed mother of accused Bittu is also

dependent upon him. Accused has already faced agony of

trial for about twenty five years. Accordingly, lenient view

be taken and he be awarded sentence equivalent to the

period which he had already remained in jail. Similar

arguments have been advanced by the learned counsel for

accused Mittu. According to him, accused also has a family

which is dependent upon him. Reliance has been placed on

the following judgments:-

i) Krishan Pal vs. State reported in 2003 (69) DRJ

ii) Mohd. Ali vs. State reported in 2001 (60) DRJ

iii) Munna Lal vs. State reported in 87 (2000) DLT

iv) Mahabir Prasad vs. State reported in 76 (1998) DLT 324

v) Faizy vs. State reported in 2000 (56) DRJ (Suppl) 487 and

vi) Ram Kumar vs. State of Haryana reported in 2006(4) SCC 347

29. As against this learned counsel for the State has

contended that appellants are guilty of committing heinous

crime of kidnapping and rape. Accused person are not

entitled to any leniency.

30. I have considered the rival contentions of both the

parties on this point and I do not find any force in the

contentions of the learned counsel for the appellants that

the appellants be awarded sentence equivalent to the period

they have already remained in jail. Judgments relied upon

are in different facts and are not applicable to the present

case. Facts narrated above clearly show that the appellants

had indulged in, heinous offences. In the middle of night

they took the prosecutrix from her house to the house of

Ghanshyam, forcibly and at the point of knife, and

thereafter, prosecutrix was raped by the accused

Ghanshyam. Sentence has to be corresponding to the

gravity of offence. Victim of rape not only suffers physically

but the scars of rape remain imprinted in her mind for long.

Victim of rape also suffers unexplainable mental trauma.

Accordingly, I am of the view that two years sentence would

be on the lesser side. However, keeping in mind the

contentions of the appellants‟ counsel, I modify the sentence

of appellants for the offence under Section 366/34 IPC from

seven years R.I. to four years R.I. No modification, however,

is made with regard to sentence of fine awarded by the

learned Additional Sessions Judge.

31. I further sentence accused Mittu to face RI for a period

of five years for the offence under Section 376/34 IPC and to

pay a fine of Rs. 5,000/- and in default of payment of fine to

further undergo RI for four months. Both the sentences shall

run concurrently. Benefit of section 428 Cr.P.C. shall also be

available to the appellants.

32. Bail bonds and surety bonds of the appellants are

cancelled. Learned trial court shall take both the appellants

in custody and send them to jail to undergo the remaining

period of sentence as awarded by this order.

33. Both the appeals are disposed of in the above terms.

A.K. PATHAK, J.

November, 20 2009 ga