Delhi High Court
Parvez vs State on 22 April, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 22nd April, 2010
+ CRL.A. 860/2008
PARVEZ ..... Appellant
Through: Mr.D.M.Bhalla,Advocate
versus
STATE (NCT) OF DELHI ..... Respondent
Through: Ms.Richa Kapoor, APP
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?
PRADEEP NANDRAJOG, J. (Oral)
1. The prosecutrix Kumari 'J' PW-1, has successfully
withstood the test of cross-examination and hence we see no
reason to disbelieve her testimony that the appellant, who
resided near her house, was the one who had sexually
assaulted her. Her brother Saddam PW-2 has corroborated the
prosecutrix when he deposed that the appellant enticed him
and his sister on a rickshaw and near a pushta sexually
assaulted his sister. Even he has withstood the test of cross-
examination. Amina PW-3 and Abbas PW-4, the parents of the
prosecutrix, have corroborated what the prosecutrix has
deposed by deposing that in the afternoon of 15.03.2005 they
say their daughter crying. She was having blood stain on her
clothes and told them that the appellant had raped her.
2. Tilak PW-5 who has not been cross-examined has
proved the fact that Abbas and his family were residing as his
tenant in the house in which even appellant Parvez was
residing as a tenant in a room.
3. Dr.Asha Sharma PW-9 has proved that the MLC
Ex.PW-9/B was prepared by Dr.Sunita, Senior Resident, and a
colleague of Dr.Asha Sharma, as also the fact that on the MLC,
the opinion Ex.PW-9A was in her i.e. Dr.Asha Sharma's hand.
4. The exhibited document show that hymen of the
prosecutrix was torn i.e. the prosecutrix was raped.
5. Under the circumstances we concur with the
reasoning of the learned Trial Judge that it stands proved that
the appellant had subjected the prosecutrix to a sexual
assault.
6. The only question which arises for consideration is:
What should be the appropriate sentence to be imposed?
7. Noting that the prosecutrix was a minor, sentence
imposed upon the appellant by the learned Trial Judge is to
undergo imprisonment for life.
8. We note that in respect of rape, minimum sentence
prescribed is that of a sentence of imprisonment for 7 years,
with discretion vested in the judge to reduce the sentence to
less than 7 years, but after giving reasons. Where the victim is
a minor, minimum sentence prescribed is to undergo
imprisonment for 10 years with discretion vested in the Judge
to reduce the same, but after giving reasons. Thus, that the
victim is a minor, stands factored as an aggravating
circumstance in the Statute book, which provides minimum
sentence of imprisonment for 10 years to be imposed upon the
accused held guilty, where the victim is a minor.
9. Thus, merely because the victim is a minor would
be no ground by itself to award the highest sentence of
imprisonment for life.
10. Needless to state, if apart from the victim being a
minor, aggravating circumstances in the form of brutality,
bestiality, cruelty etc. or any other aggravating circumstance
is found, same has to be factored and in said eventuality
sentence in excess to undergo imprisonment for 10 years may
be imposed.
11. We find no other aggravating circumstances except
the fact that the prosecutrix was a minor. Since said
aggravating circumstance stands factored in the minimum
sentence prescribed, we dispose of the appeal modifying the
sentence imposed upon the appellant.
12. For the offence of having raped the prosecutrix, a
minor, the sentence imposed upon the appellant is to undergo
rigorous imprisonment for a period of 10 years.
13. Needless to state that the appellant shall be
entitled to the benefit of Section 428 Cr.P.C.
14. Appeal stands disposed of.
15. Since the appellant is still in jail, we direct that a
copy of this decision be sent to the Superintendent Central Jail
Tihar for his record as also to be supplied to the appellant.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
APRIL 22, 2010
'mr'
