Delhi High Court
Santosh @ Gunda 2 Nepali vs The State (Nct Of Delhi) on 27 April, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: April 27, 2011
+ CRIMINAL APPEAL NO. 287/2008
SANTOSH @ GUNDA @ NEPALI ....APPELLANT
Through: Mr.A.J.Bhambhani, Ms.Nisha Bhambhani
& Mr.Victor Ahanthem, Advocates.
Versus
THE STATE (NCT OF DELHI) ...RESPONDENT
Through: Ms.Fizani Husain, APP.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
Crl.M.A.8882/2010
Learned counsel for the appellant, on instructions from the appellant,
seeks to withdraw the application.
Application is dismissed as withdrawn.
1. This appeal is directed against the impugned judgment of learned
Additional Sessions Judge dated 27th November, 2007 and the consequent order
on sentence dated 30th November, 2007 whereby the appellant has been
convicted for the offences under Sections 323,376,450 and 506(1) of the IPC.
He was sentenced for the offence under Section 323 IPC to undergo S.I. for a
period of 9 months, for the offence under Section 506(1) IPC sentenced to
undergo R.I. for a period of one year, for the offence under Section 450 IPC to
undergo R.I. for a period of 5 years and to pay a fine of ` 5,000/-, in default of
payment of fine, to further undergo S.I. for a period of one year and for the
offence under Section 376 IPC to undergo R.I. for a period of 10 years and to
pay a fine of ` 5,000/-, in default to further undergo S.I. for a period of one year.
2. Briefly stated, case of the prosecution is that on 24th September 2004 at
about 4.00 A.M., the appellant forcibly entered into the jhuggi of the prosecutrix
where the prosecutrix was sleeping along with her mother, brothers and sisters.
The appellant was carrying a knife and on the point of knife, he asked the
prosecutrix to remove her clothes. When the mother of the prosecutrix
objected, she was assaulted with knife and sustained simple injury. It is alleged
that the appellant thereafter raped the prosecutrix and threatened to kill her if
she or her mother raised alarm. Thereafter, he left the spot. The FIR was
registered on the basis of the complaint Ex.PW1/A made by the prosecutrix to
the police. After completion of formalities of investigation, the appellant was
challaned and sent for trial.
3. The learned Additional Sessions Judge charged the appellant for the
offences under Sections 323, 376, 450 and 506(1) IPC. The appellant pleaded
not guilty to the charges and claimed trial.
4. In order to bring home the guilt of the appellant, 13 witnesses were
examined by the prosecution. The prosecutrix who appeared as PW-1 as well as
her mother fully supported the case of prosecution. In the opinion of the
learned Additional Sessions Judge their versions stood corroborated by the
medical evidence as well as the scientific evidence and relying upon the said
evidence, learned Additional Sessions judge found the appellant guilty of having
committed offences under Sections 323, 376, 450 and 506(1) IPC. Thus, he
convicted and sentenced the appellant for the aforesaid offences.
5. Feeling aggrieved by his conviction and sentence, the appellant has
preferred this appeal.
6. At the outset, learned counsel for the appellant, on instructions from the
appellant, submitted that the appellant admits his guilt and he does not wish to
press his appeal so far as merits of the case is concerned. He, however, has
confined his submissions to the quantum of sentence awarded to the appellant.
Learned counsel for the appellant submitted that the appellant, at the time of
commission of offence, was aged around 18 years as would be evident from the
report of ossification test conducted at DDU Hospital dated 27th October, 2010
wherein it is opined that the age of the appellant on date was between 22-25
years. Learned counsel submitted that the appellant has an old mother who is
dependent upon him and considering the young age and the fact that there is
no other record of his previous conviction, the sentence of 10 years
imprisonment for the offence under Section 376 IPC is too harsh and not
commensurate to the nature of offence committed by the appellant. Learned
counsel further submitted that the trial court while imposing fine on the
petitioner for the offence under Sections 376 IPC and 450 IPC, failed to consider
that the appellant belongs to a poor strata of the society and he was not
financially capable of paying such a huge amount of fine. Thus, under the
circumstances, learned counsel has urged for leniency and reduction in
sentence of imprisonment as well as the fine imposed on the appellant.
7. Learned APP, on the contrary, has argued in support of order on sentence
and submitted that given the nature of offence committed by the appellant, the
sentence awarded by the learned Trial Judge is not disproportionate. Thus, she
has pressed for dismissal of appeal.
8. I have considered the rival submissions and perused the material on
record. From the report of ossification test conducted at DDU Hospital dated
27th October, 2010, the age of the appellant as on date was opined to be
between 22-25 years. If the appellant is taken to be 25 years old on 27 th
October, 2010 working backwards his age on 24th September, 2004 would be
somewhere between 18/19 years. Considering the young age of the appellant
and the fact that he has an old mother to look after and also the fact that there
is no record of his previous conviction against the appellant, I am of the view
that the interest of justice would be met if the sentence awarded to the
appellant for the offence under Section 376 IPC is reduced from 10 years R.I.
and fine of ` 5,000/- to 7 years R.I. and fine of ` 2,500/- and the fine imposed
upon the appellant for the offence under Section 450 IPC is reduced from
` 5,000/- to ` 2,500/-. Thus, under the circumstances the appeal of the
appellant is partly admitted only on the point of sentence and while maintaining
the sentence of the appellant for the offences under Sections 323 and 506(1)
IPC, the sentence awarded to the appellant for the offences under Section 450
IPC is converted into 5 years R.I. and fine of ` 2,500/- in default to undergo S.I.
for a period of two months and for the offence under Section 376 IPC is reduced
from 10 years R.I. and fine of ` 5,000/- to 7 years R.I. and fine of ` 2,500/- in
default to undergo S.I. for a period of two months.
9. The appeal is partly accepted, subject to the aforesaid modification in the
impugned order on sentence.
10. Copy of this order be sent to the Jail Superintendent concerned for
information and compliance.
11. The appeal is disposed of.
(AJIT BHARIHOKE)
JUDGE
APRIL 27, 2011
ks
