Vijay Kumar @ Banti vs State
2009 Latest Caselaw 3911 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Date of Decision: September 23, 2009

+                      CRL.A. 215/2003

      VIJAY KUMAR @BANTI                   ..... Appellant
                Through: Mr.Deepak Sharma, Advocate.

                            versus

      STATE OF NCT OF DELHI             ..... Respondent
                Through: Ms.Richa Kapoor, A.P.P.


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

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

2. To be referred to the Reporter or not?          Yes

3. Whether judgment should be reported in Digest?          Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

31.1.2003, the learned Trial Judge has convicted appellant

Vijay Kumar for the offence punishable under Section 376 IPC.

The victim was a young girl named 'P' aged 6 years.

2. The process of law was set into motion when at

around 4.00 PM on 26.6.2001 Arvind Kumar PW-1 the father of

the victim called up at number 100 and informed the Police

Control Room. The Police Control Room transmitted the said

information to PS Model Town, where at 4.27 PM on 26.6.2001,

an entry, being DD Number 12-A, Ex.PW-8/A was entered in

the daily diary register. DD No. 12-A records that a quarrel has

taken place at Mauzi Wala Bagh, near Hans Cinema, near Ram

Singh Hotel and that the information was received from

telephone number 7461556.

3. SI Ashish Kumar PW-8 was entrusted with the

investigation pertaining to said DD entry. Accompanied by

Const.Sandeep Kumar PW-4 he reached the spot and met

Arvind Kumar PW-1, who handed over accused Vijay Kumar to

him. He i.e. SI Ashish Kumar recorded the statement Ex.PW-

1/A of Arvind Kumar noting therein that he i.e. Arvind Kumar

resides at Jhuggi No.N-21/A-10, Mauji Wala Bagh, Azadpur,

Delhi with his daughter 'P' aged 6 years. That he is employed

as a security guard with M/s. Rama Security having their office

at Kotla Mubarakpur. Since his wife is no more, when he goes

for work, his daughter 'P' stays alone at the jhuggi. That today,

i.e. 26.6.2001 when he returned from work at around 3.45 PM,

he saw Vijay Kumar @ Banti standing in his i.e. Arvind's jhuggi

with the door closed. Vijay was without his trousers and was

trying to remove the underwear of 'P'. On seeing Arvind, Vijay

attempted to flee; however he i.e. Arvind managed to

apprehend Vijay. 'P' soon after told him that Vijay had bit her

on her cheek and attempted to commit wrong act on her.

4. On learning this, SI Ashish Kumar summoned a lady

Const.Sunita PW-3 at the spot. On her arrival, SI Ashish Kumar

alongwith Const. Sandeep and Ct. Sunita took the appellant

Vijay and prosecutrix 'P' to Hindu Rao Hospital for their

medical examination. SI Ashish Kumar collected MLC Ex.PW-

8/A of 'P' as per which, on external examination, no injury

could be found on her genetalia or thighs; only a linear scar of

1½" was found on her right forearm. Dr.Vandana Sharma (not

examined as witness) who prepared the MLC advised that the

patient be taken to a gynecologist for detailed examination.

Accordingly, she i.e. Kumari 'P' was taken to Dr.Sangeeta

Chaudhary PW-9 who prepared her report Ex.PW-9/A and

opined that the hymen was freshly torn and the vagina

admitted only tip of little finger. Dr.Sangeeta handed over

slides of vulval discharge of 'P' to Ct. Sunita who seized them

as recorded in the memo Ex.PW-3/A. SI Ashish Kumar also

collected MLC Ex.PW-8/B of appellant Vijay which recorded

absence of any external injuries on the genetalia of appellant

but a few abrasions on his chest. Smegma was found absent.

The appellant was referred to be taken to Medico Legal Expert,

who on examination opined that there was nothing to suggest

that appellant is not capable of performing sexual intercourse.

5. SI Ashish Kumar then made endorsement Ex.PW-

8/C on the statement Ex.PW-1/A of Arvind Kumar and handed it

over to Const.Sandeep who took it to PS Model Town for

registration of an FIR. At PS Model Town, at 12.25 AM on

27.6.2001 ASI Vinod Kumar PW-5 recorded an FIR Ex.PW-5/A

for the offence punishable under Section 376/511 IPC.

6. In the meantime, accompanied by Arvind Kumar,

'P', Ct. Sunita and appellant Vijay, SI Ashish Kumar returned to

the spot from the hospital. At the instance of Arvind Kumar

PW-1, he prepared site plan Ex.PW-8/D of the spot. On the

return of Ct. Sandeep with a copy of the FIR, SI Ashish Kumar

formally arrested appellant Vijay as recorded in memo Ex.PW-

3/C and recorded his disclosure statement Ex.PW-3/D. In the

presence of Ct. Sandeep, he seized the pant Ex.P-1 of the

appellant as recorded in memo Ex.PW-4/A and also the frock

Ex.P-2 and underwear Ex.P-3 worn by 'P' at the time of the

occurrence as recorded in memo Ex.PW-4/B.

7. Since 'P' was aged only 6 years at the time of

offence, the investigating officer moved an application Ex.PW-

8/E before a Metropolitan Magistrate for recording her

statement under section 164 Cr.P.C. and on the date fixed

therefor i.e. 29.6.2001, got recorded her statement Ex.PW-2/A.

Said statement of 'P' records that on the day of the incident

when 'P' was at her house, Vijay entered and gave her rupees

five. She however threw the same, on which Vijay bit her on

her cheek and took off his pant. Vijay then tried to remove her

underwear when her father arrived there. On seeing her father

Vijay attempted to run but was caught. Then police arrived

and carried out the investigation.

8. The pant of the accused, the frock and underwear

as also the vulval discharge of the prosecutrix were sent for

forensic examination, however, no blood or semen could be

detected on any of the said articles as recorded in FSL report

Ex.PW-8/G.

9. A charge for the offence punishable under Section

376/511 IPC was framed against Vijay. He was put to trial. The

prosecution examined 9 witnesses. PW-6 and PW-7 are formal

witnesses. PW-8 is the investigating officer SI Ashish Kumar.

PW-3 and PW-4 were the two constables assisting SI Ashish

Kumar. PW-5 recorded the FIR and PW-9 is the Gynecologist

who examined the prosecutrix. PW-1 being the father of the

victim and PW-2 being the victim herself, everything turns on

their testimonies.

10. Arvind Kumar PW-1 deposed that he was employed

with Rama Security Kotla Mubarakpur, Delhi. His wife died in

1995 and since then when he used to go for his work, his

daughter 'P' used to stay alone at their jhuggi. On the day of

the incident, when at around 4.00 PM he returned from his

duty and was present at the tea shop outside his house, he

heard cries coming from his house. He immediately rushed

and found appellant Vijay there in a naked condition without

his trousers, trying to remove the underwear of his daughter

'P'. On seeing him, Vijay tried to flee. But with the help of

neighbours, who had also in the meantime collected there, he

i.e. Arvind apprehended Vijay. 'P' had a cut on her cheek which

she informed him was because Vijay bit her. He informed the

police of the occurrence. On being cross-examined he stated

that he knew Vijay as he resided in the neighbourhood. That

between the tea shop where he was at that time and his

house, there is only one wall.

11. 'P' PW-2 deposed that at the time of the incident

she was studying in class three. It was summer time, and she

was present in her house when appellant Vijay who resides in

the neighbourhood came there. Her father was then sitting at

the tea shop outside. Vijay gave her five rupees and asked her

to do wrong act with him. When she refused and returned the

money, he closed the door, laid her on the bed and bit her

cheek. He removed her i.e. 'P's frock and underwear as well as

his own pant. He laid himself on her. On this she started

screaming because of which her father and other neighbours

reached there. Vijay tried to escape but her father

apprehended him. Police reached soon thereafter.

12. Dr.Sangeeta Chaudhary PW-9 deposed that on

26.6.2001, she examined 'P' and found her hymen freshly

torn. Since this evidence showed that 'P' was subject to sexual

intercourse, a charge for the offence punishable under Section

376 IPC was framed on 27.1.2003. Since the charge was

altered, an opportunity to recall the witnesses who were

examined till then was given to the accused, who chose to

summon only PW-9 for further cross-examination. Accordingly,

PW-9 was recalled for further cross-examination, but on the

next date of hearing i.e. 30.1.2003, the accused, through his

counsel stated that he does not intend to further cross-

examine PW-9.

13. Vide impugned judgment and order dated

31.1.2003, the learned Trial Judge has convicted appellant

Vijay for the offence punishable under Section 376 IPC. The

learned Trial Judge has held that the testimony of PW-9 and

the report Ex.PW-9/A conclusively established that Kumari 'P'

was subjected to sexual intercourse. Relying on the

testimonies of PW-1 and PW-2, the learned Trial Judge has held

that it was unbelievable that either the prosecutrix herself or

her father would implicate the accused falsely and thereby let

go off the real culprit, especially where no motive to do so on

their part has been assailed by the prosecution, much less

proved.

14. The appellant has been sentenced to undergo

imprisonment for life. The learned Trial Judge has imposed the

maximum sentence on account of the reason the victim being

a minor.

15. Learned counsel for the appellant contends that

neither Kumari 'P' nor her father has deposed that Kumari 'P'

was raped. Thus, counsel urges that at best the evidence

suggests an attempt to rape.

16. If we peruse the testimony of Kumari 'P' we note

that she has categorically stated that after stripping her, the

appellant took off his pant and lay down on top of her. Kumari

'P' is too young to understand what actually happened to her.

But what happened to her is evidenced by the testimony of

PW-9 and the report Ex.PW-9/A which shows that Kumari 'P's

hymen was torn. Kumari 'P' has not said that the appellant

inserted his finger into her vagina. It is not the case of the

appellant that he committed digital rape. Thus, we concur

with the view taken by the learned Trial Judge that the

evidence establishes Kumari 'P' being raped.

17. On the issue of sentence we find that a Division

Bench of this Court, in the decision reported as 2008 (4) JCC

2497 Khem Chand vs. State of Delhi, has extensively noted the

sentencing policy in relation to the victim being a minor. It

was held that notwithstanding rape being a serious offence,

mechanically, the highest sentence i.e. of life imprisonment

should not be imposed.

18. We note that the legislature has provided for stiffer

sentence in case of child rape; the maximum being up to life

imprisonment. The minimum sentence prescribed is ten years'

imprisonment. Thus, a safe method of sentencing would be to

apply the minimum and if aggravating circumstances are

found, to impose the higher sentence. Mitigating

circumstances of the offender being a first time offender and

of young immature age have also to be considered.

Aggravating circumstances would be violence committed while

subjecting the victim to rape; position of trust betrayed and

possibility of recidivism i.e. repeat offending.

19. The appellant was a young boy aged a little above

18 years when he committed the offence. The age has been

noted by the learned Trial Judge as 18 years in the order

imposing sentence. There is no history of the appellant being

a previous convict. The victim has not been brutalized. Thus,

we hold that the appropriate sentence to be awarded is to

undergo imprisonment for ten years.

20. Dismissing the appeal insofar it lays a challenge to

the order of conviction, we modify the order of sentence dated

31.1.2003 and set aside the sentence of imprisonment for life.

We sentence the appellant to undergo imprisonment for ten

years. The appellant would be entitled to the benefit of

Section 428 Cr.P.C.

21. The appeal stands disposed of in terms of para 20

above.

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

Central Jail, Tihar for compliance.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 23, 2009 Dharmender