Arun Kumar Rao @ Arun Kumar Roy vs State
2010 Latest Caselaw 1116 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 25th February, 2010

+                        CRL.APPEAL NO.957/2006

         ARUN KUMAR RAO @ARUN KUMAR ROY .... Appellant
                 Through: Mr.Rajesh Mahajan, Advocate.

                         Versus

         STATE OF NCT OF DELHI        ..... Respondent
                   Through: Ms.Richa Kapoor, 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 the Reporter or not?                   Yes

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


PRADEEP NANDRAJOG, J. (Oral)

1. The FIR in question for the offence punishable

under Section 376/506 IPC has been registered on the

statement Ex.PW-3/A of Smt.Sushila Devi PW-3, as per which

on 2.8.2004, at around 1:00 PM she saw that the appellant was

on top of her daughter in her house. He had removed not only

his clothes but even those of his daughter and was in the act

of sexually assaulting her daughter. She shrieked and

neighbours gathered. With the help of one Vishal, appellant

was apprehended and police was informed.

2. SI Sanjay Bhardwaj PW-13 who has recorded the

afore-noted statement made the endorsement Ex.PW-13/B

beneath the statement recording therein the fact that the

appellant has been apprehended and that the victim and the

appellant have been sent for medical examination.

3. At the trial Sushila PW-3 has deposed facts in

harmony with her statement Ex.PW-3/A. She has withstood

the test of cross-examination. Kumari 'K' PW-1, the victim has

identified the appellant as her tormentor. Even she has

withstood the test of cross-examination.

4. Vishal PW-4 has corroborated Sushila of having

apprehended the appellant at the spot and having handed him

over to the police.

5. SI Sanjay Bhardwaj PW-13 has proved having

recorded the statement of Sushila and his endorsement

coupled with the fact of appellant being arrested by him and

sent for medical examination.

6. That Kumari 'K' was raped stands proved by the

MLC Ex.PW-6/A and the testimony of Dr.Kumud Bharti PW-6

who examined the young girl.

7. That the appellant is capable of performing sexual

intercourse stands proved by the MLC Ex.PW-7/A and the

testimony of its author Dr.A.Goyal PW-7.

8. Semen was detected on the vaginal swab of the

prosecutrix stands established by the report Ex.PW-18/C.

9. The report Ex.PW-1/A proved by Dr.A.K.Srivastava

establishes that the DNA profile of the blood sample of the

deceased matched that of the biological fluid Ex.PW-2/A i.e.

the vaginal swab of the prosecutrix. Unfortunately, Ex.PW-2/A

has not been put to the appellant when he was examined

under Section 313 Cr.P.C. and hence the same has to be

excluded while considering the incriminating evidence.

10. Learned counsel for the appellant concedes that in

view of the afore-noted evidence, even excluding the DNA

report, there is tell tale evidence of the appellant being the

tormentor of the young girl.

11. We note that the appellant has been sentenced to

undergo imprisonment for life i.e. the highest sentence

permissible under law.

12. A Division Bench of this Court, in the decision

reported as 2008 (4) JCC 2497 Khemchand vs. State of Delhi

had extensively referred to case law to bring home the point

that merely because the prosecutrix is a minor is no ground to

impose the highest sentence. The judgment highlighted that

the age of the accused and other aggravating circumstances

such as brutality at the time of rape have to be factored in. If

the rape is accompanied by acts of brutality higher sentence

should be imposed.

13. A Division Bench of this Court, of which one of us,

namely Pradeep Nandrajog, J. was a member of, in the

decision dated 23.3.2009 in Crl.Appeal No.335/2005

'Prabhunath vs. State', had opined that for awarding

appropriate sentence, in case of child rape, commencing from

the sentence of 10 years, higher sentence should be imposed

only if aggravating circumstances exist other than the victim

being a minor.

14. Finding none in the instant case, maintaining the

conviction of the appellant, we modify the sentence directing

that for the offence of having raped Kumari 'K' the appellant

shall suffer rigorous imprisonment for a period of ten years.

For the offence punishable under Section 506 IPC the sentence

is maintained. Needless to state, both sentences shall run

concurrently.

15. The appellant shall be entitled to the benefit of

Section 428 Cr.P.C.

16. Since the appellant is still in Tihar jail we direct that

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

Jail, Tihar to be made available to the appellant and for

correction in the jail record pertaining to the sentence which

the appellant has to suffer.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 25, 2010 dkb