Kishan Pal vs State
2010 Latest Caselaw 1982 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : 16th April, 2010

+                       Crl.A.No.298/2010

        KISHAN PAL                              ..... Appellant
                          Through:   Ms.Nilofar Qureshi, Advocate

                     versus

        STATE                                 ..... Respondent
                          Through:   Mr.M.N.Dudeja, A.P.P.

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

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

11.05.2009 the appellant has been convicted for the offence

punishable under Section 376/506 IPC. For the offence of rape

appellant has been sentenced to undergo imprisonment for life

and pay fine in sum of Rs.50,000/-. For the offence punishable

under Section 506 IPC the appellant has been sentenced to

undergo RI for three years and pay fine in sum of Rs.10,000/-.

2. In sustaining the conviction of the appellant the

learned trial judge has held that the testimony of the

prosecutrix, examined as PW-1, inspires confidence and has

been corroborated through the testimony of Geeta PW-2. That

the prosecutrix was subjected to a sexual intercourse had

been held established with reference to the MLC Ex.PW-9/A

which shows that the hymen of the prosecutrix had a tear.

Further corroboration has been found with reference to the

report Ex.PW10/C and Ex.PW-10/D of the Senior Scientific

Assistant as per which human semen was detected on the

vaginal swab slide of the prosecutrix as also the salwar worn

by the prosecutrix which was taken into possession by the

doctor, who examined the prosecutrix the day next when, as

per claim of the prosecutrix, she was subjected to sexual

intercourse.

3. As deposed to by the prosecutrix her father had

abandoned her mother who died thereby compelling the

prosecutrix to sleep in the compound of GTB hospital where

the accused, who was known to her as a rickshaw puller, met

her and assured her that he would keep her like his daughter

and would arrange for her marriage when she grew up.

Thereby winning her confidence he took her to his house at

New Seemapuri and told her to tell the people around that the

appellant was the son of her paternal uncle (Tau). That in the

night after removing her salwar the appellant committed rape

upon her and gave his underwear to her to clean the semen

which fell on her body. As per the prosecutrix the next day

morning at 5:00 AM she told as to what had happened to her,

to the landlady Geeta, by which time the accused had left to

ply his rickshaw. In the evening, when he returned, Geeta

made the appellant take her i.e. the prosecutrix to the police

station where her statement Ex.PW-1/A was recorded.

4. Geeta PW-2 the landlady referred to by the

prosecutrix in her statement stated that the accused had

brought a girl in his room on 17.08.2005 and told her i.e.

Geeta that the girl would be staying with him and the young

girl told Geeta that the accused was son of her uncle. That the

accused slept with the prosecutrix in his room and next day

morning when prosecutrix was playing she told another lady

that the accused had subjected her to rape, the lady told her

said fact. She i.e. Geeta waited for the accused to return and

then took accused along with prosecutrix to the P.S.

5. ASI Pushpa PW-10 posted at PS Seelampuri deposed

that Geeta accompanied by the accused and the prosecutrix

came to the police station and she recorded the statement

Ex.PW-1/A of the prosecutrix and making an endorsement

Ex.PW-10/A beneath the same got registered the FIR and took

the prosecutrix to GTB hospital, where her MLC was conducted

as per which there was evidence of the prosecutrix being

raped. That after the prosecutrix was medically examined, her

Salwar and Vaginal Swab Slide duly sealed by GTB hospital

was handed over to her which she seized as recorded in the

memo Ex.PW-3/A and she sent the same for forensic

examination along with an underwear got recovered by the

appellant from his house. That forensic reports Ex.PW-10/C

and Ex.PW-10/D were received by her.

6. Unfortunately, Dr.Monika who had medically

examined the prosecutrix at GTB hospital had left the services

and therefore Dr.Jyoti who was conversant with the

handwriting of Dr.Monika proved the MLC Ex.PW-9/A and

clarified that if hymen tear was an old injury, it would have

been so mentioned. She clarified that if it is not mentioned

that the hymen tear is a scar mark, it has to be treated that

the hymen tear is a fresh injury.

7. After he was apprehended the appellant was

medically examined and as per MLC Ex.PW-7/A it was opined

that the appellant was capable of sexual intercourse and

disclosed his age to be 42 years.

8. This then is the total evidence led at the trial.

9. It is urged by learned counsel for the appellant that

the testimony of Geeta pertaining to what was spoken off by

the prosecutrix is hearsay evidence for the reason Geeta

claims that one Yasmin told her that the prosecutrix has told

Yasmin as to what transpired last night.

10. The argument of learned counsel for the appellant

is well founded and is accepted.

11. But, we have the testimony of the prosecutrix which

nails the appellant.

12. Discrediting the prosecutrix, learned counsel urges

that in her examination-in-chief the prosecutrix claims to have

told the landlady of her ordeal in the night at 5.00 A.M. in the

morning and from the testimony of Geeta PW-2 as per whom

when the prosecutrix was playing outside the house she told

Yasmin on Yasmin asking her, that the appellant had subjected

her to rape. Learned counsel further urges that why would the

appellant take the prosecutrix and Geeta to the police station

if he was accused of having raped the prosecutrix.

13. We do not know why the appellant volunteered to

take prosecutrix and Geeta to the hospital but the fact is that

he did so. Geeta claims so. The prosecutrix claims so. ASI

Poonam PW-10 claims so.

14. None of them have been cross-examined with

reference to their testimony that the appellant took

prosecutrix and Geeta to the police station.

15. Learned trial Judge has dealt with this issue by

recording an opinion that it is possible that under fear of public

beating the appellant took the prosecutrix to the police station

on being compelled by Geeta to do so. Well, this can be the

reason why the appellant did so.

16. The fact of the matter remains that the two FSL

reports Ex.PW-10/C and Ex.PW-10/D conclusively establish that

the prosecutrix was subjected to sexual intercourse which is

evidenced by the fact that human semen was detected on the

vaginal swab slide as also the salwar which the prosecutrix

was wearing. The prosecutrix claims that the appellant took

her to his house. Geeta corroborates the prosecutrix of having

seen the appellant bringing the prosecutrix to his room in the

night of 17.08.2005.

17. The denial by the appellant to each and every

incriminating circumstance and his rendering not a word of

explanation compels us to hold that the evidence on record

establishes the prosecutrix being subjected to sexual

intercourse on the night of 17 and 18th August, 2005. The

prosecutrix spent the night in the room of the appellant. There

may be some blemishes in the testimony of the prosecutrix

but they are not of such serious nature so as to discredit her.

Even the MLC Ex.PW-9/A of the prosecutrix evidences her

being subjected to sexual intercourse. The reports Ex.PW-10/C

and Ex.PW-10/D are the final nail in the coffin.

18. But, we have a problem with the sentence imposed

by the learned trial Judge.

19. It is settled law that while imposing sentence the

approach should be to start from the minimum sentence

whenever prescribed and if aggravating circumstances are to

be found to move towards the higher sentence prescribed.

20. Pertaining to the rape of a minor, factoring in the

aggravating circumstances of the victim being a minor, the

legislature has provided for a minimum sentence of 10 years

with a maximum of imprisonment for life. Notwithstanding a

minimum sentence being prescribed, discretion has been left

with a judge, to after giving the reasons, impose a lesser

sentence.

21. Thus, merely because the prosecutrix was a minor

would be no reason by itself to impose the sentence to

undergo imprisonment for life.

22. Another facet of the sentence imposed by the

learned trial Judge needs a word to be penned by us.

23. Persuaded by emotions, the learned trial Judge has

directed the appellant to pay fine in sum of Rs.50,000/- for the

offence of rape and Rs.10,000/- for the offence of intimidation.

It has been held that on fine being realized the same would be

paid over to the prosecutrix.

24. Little has the trial Judge realized that the appellant

is a rickshaw puller who earns his daily bread and by next

morning has not a penny in his bag even for himself.

25. What is the use of directing such compensations to

be paid where the accused has no means even to feed

himself?

26. All throughout the trial and even in the appeal, the

appellant has been represented by a Legal Aid Counsel which

shows that the appellant has no means even to defend

himself. Being a rickshaw puller, the appellant would have no

funds to compensate the prosecutrix or to pay such a heavy

fine.

27. Learned trial Judges are expected to be humane but

are not expected to be persuaded by undue emotions.

Practicalities of life have always to be kept in view.

28. We dispose of the appeal maintaining the

conviction of the appellant for the two offences sustained by

the learned trial Judge, but reduce the sentence for the offence

of rape.

29. Maintaining the sentence for the offence punishable

under Section 506 IPC, we modify the sentence imposed for

the offence of rape by directing that the appellant shall suffer

Rigorous Imprisonment for a period of 10 years for the offence

punishable under Section 376(2)(f) IPC. Needless to state both

the sentences shall run concurrently. The appellant shall also

be entitled to the benefit of Section 428 Cr.P.C.

30. Since the appellant is still in Jail, we direct that a

copy of this decision be sent to the Superintendent, Central Jail

Tihar to be supplied to the appellant.

PRADEEP NANDRAJOG, J

SURESH KAIT, J APRIL 16, 2010 'mr/nks'