Anthony vs The State (Nct Govt. Of Delhi)
2011 Latest Caselaw 1957 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL.A. No. 889/2006

                                        Date of Decision 05.04.2011
IN THE MATTER OF :
ANTHONY                                                 ..... Appellant
                        Through: Mr. V.M. Issar, Advocate

                  versus


THE STATE (NCT GOVT. OF DELHI)                   ..... Respondent

Through: Mr. M.N. Dudeja, APP for the State

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may Yes be allowed to see the Judgment?

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

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


HIMA KOHLI, J (Oral)

1. The present appeal arises out of the judgment of conviction

dated 14.9.2006 and order on sentence dated 16.9.2006, whereunder

the appellant was convicted under Sections 363/366/376 IPC S.C.No.

160/05 arising out of FIR No. 44/2004 registered with PS Gulabi Bagh,

Delhi and sentenced under section 363 IPC to undergo rigorous

imprisonment for a period of 3 years and pay fine of `1,000/-, in

default thereof, to undergo rigorous imprisonment for a period of 1

month; under section 366 IPC to undergo rigorous imprisonment for a

period of 5 years and pay fine of `1,500/-, in default thereof, to

undergo rigorous imprisonment for a period of 2 months; and under

Section 376 IPC to undergo rigorous imprisonment for a period of 7

years and pay fine of `2,500/-, in default thereof, to undergo rigorous

imprisonment for a period of 3 months. All the sentences were

directed to run concurrently and the benefit of Section 428 Cr.P.C. was

given to the appellant for the period already undergone by him during

the trial.

2. The incident, subject matter of the aforesaid judgment,

occurred on 24.02.2004 at 1 am, when the mother of the prosecutrix

got DD no. 3 registered at police post Andha Mughal of PS Gulabi Bagh

stating that her daughter, the prosecutrix was missing from

23.02.2004 since 2 pm and that she did not return home from her

tuition class. On the same day, at 11.30 pm, the prosecutrix was

dropped by the appellant at Police Post: Andha Mughal. After a gap of

one week from the date of the incident, on 1.3.2004, the prosecutrix,

accompanied by her mother, came to the police station and gave a

statement (Ex. PW-2/A) that on 23.2.2004 at about 2 pm, the

appellant, who was her neighbour, duped her into sitting on his

scooter, on the pretext of dropping her at her tuition place. Thereafter,

as per the prosecutrix, he took her to various unknown places,

committed rape on her and threatened her that he would kill her, if

she disclosed what had happened to anyone. On the next evening, he

brought the prosecutrix back to police post Andha Mughal. Based on

the statement of the prosecutrix, FIR No.44/2004 was registered with

PS Gulabi Bagh. Subsequently, the appellant was arrested and both

the prosecutrix and the appellant were medically examined and their

swab slides and clothes were sent to the FSL for examination.

3. After the investigation was completed, a challan was filed

before the court of the learned MM, who committed the case to the

court of Sessions. Charges were framed against the appellant/accused

under Sections 363/366/376 IPC, to which the appellant pleaded not

guilty and claimed trial. In the trial, 16 prosecution witnesses were

examined including the mother of the prosecutrix (PW-1) and the

prosecutrix herself (PW-2). Statement of the appellant was recorded

under Section 313 CrPC, and three defence witnesses were examined

in defence evidence. On an examination of the evidence which came

on record, the trial court arrived at the conclusion that the said

evidence was sufficient to hold the appellant/accused no. 1 guilty of

kidnapping and rape under Sections 363/366/376 IPC and thus

convicted him for such offences. Hence the present appeal.

4. At the outset, counsel for the appellant submits that the

appellant does not propose to assail the impugned order of conviction

on merits and would like to confine his submissions in the appeal, to

the order of sentence alone, by requesting that the sentence of the

appellant be reduced to the period already undergone by him.

5. Counsel for the appellant states that at the time of the

incident, the appellant was a young man of the age of 23 years. He

submits that the appellant and the prosecutrix are both Christians and

were neighbours. He suggests that the possibility of the prosecutrix

having consented to sexual intercourse cannot be ruled out entirely,

especially since even the learned ASJ had found force in this

submission, based on the conduct of the prosecutrix in not raising an

alarm and not making a complaint to anyone during the period she

was with the appellant. Inspite of this finding, having regard to the age

of the prosecutrix, which at the time of the incident was 14 years and

3 months, the appellant was held guilty of rape. He further submits

that even the conduct of the appellant in bringing the prosecutrix back

to the police post Andha Mughal suggests that the prosecutrix had

willingly gone with him. He has also drawn the attention of this court

to the MLC report of the prosecutrix dated 1.3.2004, to submit that

the same indicates that there were no marks of external injury on the

body of the prosecutrix and that she had an old torn hymen.

6. Counsel for the appellant suggests that there are several

other mitigating factors, which may be taken into consideration for

reduction of the sentence of the appellant to the period already

undergone by him. He states that the appellant is a first time offender

with clean antecedents, and without any criminal history, his father

who is a daily wager doing the job of painting houses, is suffering from

tuberculosis, and there is no other earning member in his family who

can take care of his father. He further submits that the appellant's

family is in a poor economic condition and the appellant is not in a

position to pay the fine ordered by the learned ASJ in the order of

sentence.

7. Counsel for the appellant has also drawn the attention of

the court to the fact that the prosecutrix has in the meantime got

married and is happily settled. He places reliance on the decision of

the Supreme Court in the case of Ram Kumar v. State of Haryana

reported as (2006) 4 SCC 347, where in case of a conviction on rape,

the sentence was reduced as the prosecutrix had got married and was

settled. The father of the prosecutrix is present in Court and hands

over a copy of the ration card to identify himself. He unequivocally

states that he has forgiven the appellant and now he bears no ill-will

or grudge against him. He further submits that he is not opposed to

the reduction of the sentence of the appellant to the period undergone.

8. As per the nominal roll, as on 1.4.2011, the appellant has

undergone imprisonment for a period of 5 years, 02 months and 14

days, the remission earned by him is 1 year, 07 months and 04 days.

As on date, the appellant has undergone conviction for a period of 6

years, 09 months and 18 days, leaving the unexpired portion of his

sentence as 02 months and 12 IFP. As far as the jail conduct of the

appellant is concerned, the same is indicated as satisfactory. There is

no other case pending against the appellant, nor has he been

convicted in any other case.

9. Having regard to the fact that the appellant is a first time

offender and has already undergone sentence for a period of

approximately 6 years and 9 months, including the period of remission

and also considering the fact that the prosecutrix is happily married

and her father has forgiven the appellant, in the peculiar facts and

circumstances of the present case, a lenient view is taken with respect

to him. Furthermore, it is expected that the purpose of reformation,

with regard to the appellant, would have been sufficiently served in a

period of incarceration extending over 6 years. In view of the aforesaid

facts and circumstances of the case and considering the fact that the

appellant is stated not to be involved in any other criminal case apart

from the present one, and it also appears that if released, he can be

well assimilated in the main stream of the society as a useful citizen,

this Court is of the opinion that no useful purpose shall be served in

requiring the appellant to undergo the remaining portion of the

sentence.

10. Therefore, while upholding the order of conviction, the

sentence imposed on the appellant is modified to the extent that it is

directed that the appellant be released by reducing the sentence to the

period already undergone by him. As regards the fine of `5,000/-

imposed on the appellant under the order on sentence, taking into

consideration the financially weak background of the appellant and his

family, in lieu of the fine imposed on him, the appellant is admonished.

11. The appeal is disposed of.

A copy of this order be forwarded forthwith to the Jail

Superintendent for perusal and compliance.

                                                          (HIMA KOHLI)
April   05, 2011                                             JUDGE
pm