Dilshad vs State Of Nct Of Delhi
2009 Latest Caselaw 4087 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: 9th October, 2009

+                             CRL.A. 958/2006

         DILSHAD                                  ..... Appellant
                         Through : Ms. Purnima Sethi, Advocate

                                   versus

         STATE OF NCT OF DELHI                ..... Respondent
                   Through : Mr. M.N.Dudeja, Advocate

          CORAM:
          HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
          HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                  Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Dilshad, the appellant has been convicted for the

offence of having raped Kumari 'S' and has been sentenced to

undergo imprisonment for life. He has also been convicted for

the offence punishable under Section 363 IPC, for which

offence he has been directed to undergo imprisonment for one

year. He has also been convicted for the offence punishable

under Section 366 IPC, for which offence he has been

sentenced to undergo imprisonment for 10 years.

2. As per the evidence on record, Kumari 'S' was aged

9 years when the offence was committed.

3. In returning the findings of guilt, the learned trial

Judge has, with reference to the MLC, Ex.PW-10/A of Kumari 'S'

as also the testimony of Dr.Ruchika PW-10, concluded that the

same evidences Kumari 'S' being subjected to a penetration.

4. With reference to the testimony of Kumari 'S', who

appeared as PW-2, the learned trial Judge has held that the so

called blemishes and embellishments and improvements in her

testimony, pointed out to him, were trivial and that Kumari 'S'

has spoken the truth. Since Kumari 'S' nailed the appellant as

her tormentor, finding returned is that the testimony of Kumari

'S' establishes that the person who subjected Kumari 'S' to a

sexual intercourse was the appellant who enticed her i.e.

removed her from the lawful custody of her parents.

5. Though not referred to by the learned trial Judge,

the MLC Ex.PW-9/A of the appellant shows and proves that the

appellant is capable of performing sexual intercourse.

6. In returning the sentence of imprisonment for life

for the offence of rape, the reason given by the learned trial

Judge is that Kumari 'S' was a minor and that a sexual offence

against a minor warrants a sentence of imprisonment for life.

7. We have heard learned counsel for the appellant

and have perused the record.

8. We have perused the testimony of Kumari 'S' and

note that within the constraints of her age and socio-economic

background, the minor deviations in her testimony vis-à-vis

her initial statement to the police have to be ignored.

9. We see no reason why Kumari 'S' would falsely

implicate the appellant. Kumari 'S' has successfully withstood

the test of cross-examination and has clearly brought out the

fact that the appellant had subjected her to a forcible sexual

intercourse after enticing her away from the lawful custody of

her parents.

10. Thus, we concur with the view taken by the learned

trial Judge in the impugned decision dated 27.10.2005 that the

appellant has committed rape on Kumari 'S' and has

committed an offence punishable under Section 363 IPC.

11. However, we are left wondering as to how has the

appellant been convicted for the offence punishable under

Section 366 IPC. There is no evidence that Kumari 'S' was

kidnapped with the intent of compelling her to a person

against her wish or to force her or seduce her to illicit

intercourse. Indeed, learned counsel for the State concedes

that there is just no evidence to convict the appellant for the

offence punishable under Section 366 IPC.

12. We accordingly set aside the conviction of the

appellant as also the sentence for the offence punishable

under Section 366 IPC.

13. We maintain the conviction of the appellant for the

offence punishable under Section 376 IPC and Section 363 IPC.

14. However, we reduce the sentence imposed upon

the appellant for the offence punishable under Section 376 IPC

from imprisonment for life to undergo imprisonment for 7

years. We maintain the sentence of imprisonment for one

year pertaining to the offence punishable under Section 363

IPC. Needless to state, both sentences shall run concurrently.

The appellant shall be entitled to the benefit of Section 428

Cr.P.C.

15. Our reason for reducing the sentence to undergo

imprisonment for 7 years for the offence of rape pertaining to

Kumari 'S' is that it is permissible for a Court, after giving

adequate and special reasons to impose a sentence for a term

less than 10 years, but not less than 7 years, when the victim

is a child under 12 years of age.

16. The reason why we are reducing the sentence is

that this is the solitary offence committed by the appellant and

that his wife is suffering from cancer, a fact got verified

through learned counsel for the State when the appellant was

granted interim bail vide order dated 8.4.2009 and the

additional fact that the appellant has 4 minor children, 3 of

whom are girls aged less than 11 years. The wife of the

appellant is breathing her last and the 4 minor children are

virtually in a state of starvation. The appellant is the sole

bread earner of his family.

17. Since the appellant is in jail, copy of this order be

sent to the Superintendent Central Jail Tihar for compliance

and to be made available to the appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

OCTOBER 09, 2009 mm