Anand Pal vs State
2010 Latest Caselaw 313 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    Crl.A.No.798/2005
#    ANAND PAL                                  ..... Appellant
                     Through    Mr.Lal Singh Thakur Advocate
                     versus
$    STATE                                        ..... Respondent
^                    Through    Mr.Jaideep Malik, APP.

*    CORAM:
     HON'BLE MR. JUSTICE V.K. JAIN

     1.    Whether the Reporters of local papers
           may be allowed to see the judgment?               No

     2.    To be referred to the Reporter or not?            No

     3.    Whether the judgment should be
           reported in the Digest?                           No

: V.K. JAIN, J. (ORAL)

1. This is an appeal against the Judgment dated 27th July,

2005 and Order on Sentence dated 29th July, 2005, whereby the

appellant was convicted under Section 363 and 376 of IPC and

was sentenced to undergo RI for 2 years and to pay fine of

Rs.1,500/- or to undergo SI for one month in default 363 of IPC

and was further sentenced to undergo RI for 10 years and to

pay fine of Rs.2,000/- or to undergo RI for one month in default

under Section 376 of IPC.

2. The case of the prosecution, as disclosed in the FIR lodged

by Smt. Raj Kumari, mother of the prosecutrix, on 28th April,

2003, is that on 27th April, 2003, when her daughter, aged 12

years, was alone at home, the appellant, who is her neighbor,

came to her room at about 1.00 pm, took the prosecutrix to his

room and thereafter he committed rape with her.

3. The prosecution examined 13 witnesses in support of his

case, whereas three witnesses were examined in defence.

4. The prosecutrix came in the witness box as PW-1 and

stated that the appellant, who is their neighbor, came to her

house at about 9.30 am, lifted her and took her to the house of

Jagdish. When she started weeping, the appellant pressed her

mouth with his hand and kept a knife on her neck. He

threatened to kill her in case she shouted. In her examination-

in-chief, she also stated that the appellant did nothing else

except removing her clothes. According to her, she became

unconscious and some children from the neighbourhood came

there and sprinkled water on her face, as a result of which she

regained her consciousness and went to her house. In the night,

when her mother returned home, she narrated the incident to

her, who on hearing the incident became unconscious, as she

was suffering from fits. The matter was next day reported to

the police. This witness was cross-examined by learned APP and

during cross-examination, she disclosed that in fact, the

appellant had done wrong act with her in the house of Jagdish.

She admitted that wrong act with her was done after bolting the

room from inside. She stated that she did not disclose these

facts earlier as she was feeling ashamed. At this stage of her

examination, the witness was found weeping and when her

cross-examination resumed, she stated that on the date of

incident, the wife of Jagdish had gone for work, whereas Jagdish

had left the room open as his children were playing in the open

courtyard. She also stated that the children of Jagdhish were

playing the in the street when this incident took place. She

denied the suggestion of the learned defence counsel that the

appellant had not committed sexual intercourse with her.

5. PW-2, Smt. Raj Kumari, mother of the prosecutrix,

however, did not support the prosecution and stated that there

was a quarrel between her daughter and wife of the appellant

and that she had gone to Police Station and reported the matter

to the police.

6. PW-10 Smt. Bimla Kumari, Presiding Officer, MACT stated

that on 29th April, 2003, she had recorded the statement of the

prosecutrix Ex.PW-1/A. PW-11 Dr. Bhuvnesh, Senior

Radiologist in AIIMS examined the X-ray plates of the

prosecutrix on 28th April, 2003 and opined that her age was

between 10 to 13 years. PW-12 Dr.A.K. Srivastav, Senior

Scientific Oficer Biology, FSL, proved his report Ex.PW-12/A.

7. In his statement under Section 313 Cr.P.C., the appellant

denied the allegations against him and stated that no such

incident took place and that on 27 th April, 2003, he had gone to

his native village to attend a Jagran. He further stated that the

husband of the prosecutrix who at that time was her friend used

to come there and both of them used to live like husband and

wife to which he had objected and he had also slapped him

about one week before the alleged incident.

8. DW-1 Lakhmi Chand is the Pradhan of Gram Panchayat

Beri and has stated that the appellant had come to him

alongwith his father on 27th April, 2003 for arranging Jagran

and the date of Jagran was decided as 3rd May, 2003. According

to him, the appellant left the village on 28 th April, 2003. DW-2

Ram Avtar has stated that the letter Ex.DW-1/A was signed by

him at the instance of DW-1 and that on 27th April, 2003, the

appellant had gone to his village. DW-3 Madan Lal has

corroborated the deposition of DW-2.

9. After arguments, the learned counsel for the appellant

states that in view of the evidence produced during trial, he

does not dispute the conviction on merits and only requests that

the sentence awarded to the appellant may be reduced,

considering his age and other facts and circumstances of the

case. Even otherwise, I am satisfied from consideration of the

statement of the prosecutrix, coupled with the statement made

by her to the doctor at the time of her examination in hospital

on 28th April, 2003 and her statement made before the learned

Metropolitan Magistrate on 29th April, 2003 which stands

further corroborated from the report of FSL which shows

presence of semen on the underwear and salwar sent to the

laboratory, that the appellant not only removed the prosecutrix

from the lawful custody of her parents, but also committed rape

with her on 27th April, 2003. Though in her examination-in-

chief, the prosecutrix on account of shame or I would call it

embarrassment, which she was feeling and which is otherwise

bound to be felt by a girl of her age in narrating an incident of

this nature, in the Court, in the presence of a number of

outsiders such as Presiding Judge, Advocates, Court staff,

Prosecutor. She denied actual commission of rape, the true

facts were disclosed by her during cross-examination. The

sexual intercourse is also evident from the fact that semen was

detected on her salwar and underwear, when they were

examined in FSL.

10. Section 376 of IPC provides that a person who commits

rape shall be punished with imprisonment which shall not be

less than of 7 years. If, however, the rape is committed on a

woman when she is under 12 years of age, the minimum

punishment prescribed for the offence is 10 years. In the

present case, this is nowhere the case of the prosecution that

the prosecutrix was less than of 12 years of age on the date she

was subjected to rape. In the FIR as well as in the MLC, Ex.PW-

3/A, the age of the prosecutrix has been given as 12 years and

as less than 12 years. As per Ossification Test of the

prosecutrix, her age could be anywhere between 12 to 13 years.

Thus, neither this is the case of the prosecution that the

prosecutrix was less than of 12 years of age on the date, she

was subjected to rape nor is there any evidence to this effect on

record. Hence, the provisions of Section 376(2)(f) of IPC are

not attracted to the present case.

11. The appellant belongs to poor strata of society and was a

young man when he committed this offence. Taking into

consideration all the facts and circumstances of the case, while

maintaining conviction of the appellant and the substantive

sentence and fine awarded to him under Section 363 of IPC and

also maintaining the sentence of fine imposed upon him under

Section 376 of IPC, the substantive sentence awarded to him

under Section 376 of IPC is reduced from 10 years to 7 years. In

default of payment of fine imposed upon him under Section 363

of IPC, he will undergo SI for 15 days whereas he will undergo

simple imprisonment for one month in default of fine imposed

on him under Section 376 of IPC. The sentences shall run

concurrently.

Trial Court Record be sent back, with a copy of this

judgment.

One copy of this order be given to the appellant through

Jail Superintendent.

(V.K.JAIN) JUDGE JANUARY 20, 2010 bg