State vs Ajaj Ahemad
2012 Latest Caselaw 3637 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Criminal Appeal No.524 of 2011

                                      Decided on :    31st May, 2012

STATE                                          ...... Appellant
                      Through: Mr. Sunil Sharma, APP for the State.

                            Versus

AJAJ AHEMAD                                       ...... Respondent
                      Through: Mr. Nitesh Mehra, Ms. Angel Bhardwaj &
                               Mr. Sanjeev Kumar, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl. M.A. No.4993/2011

1. This is an application under Section 5 of the Limitation

Act seeking condonation of 269 days' delay in filing the leave

to appeal.

2. The State has sought condonation of delay in filing the

appeal against the judgment and order of sentence dated

26.5.2010 on the ground that approval to file the appeal was

obtained on 19.4.2011 and the period prior to that was

consumed by the normal processes of office procedure in

obtaining the permission to appeal. No formal reply to the

application has been filed.

3. The learned counsel for the respondent/accused has

vehemently contested the application seeking condonation of

delay by urging that no sufficient cause for condonation of

delay has been shown and, therefore, the delay being

substantial, it may not be condoned. He has relied upon State

(Govt. of NCT) of Delhi vs. Shashi Shekhar @ Neeraj @ Raju;

154 (2008) DLT 678 (DB) in support of his submissions.

4. I have carefully considered the submissions made by the

respective sides and gone through the judgment of Shashi

Shekhar's case (supra). The law regarding condonation of

delay has got substantially changed from the stage of Ram Lal,

Chotte Lal & Moti Lal vs. Rewa Coal Field Pvt. Ltd; AIR 1962

SC 361 case where it was observed by the Apex Court that

while seeking condonation of delay, the party concerned has

not only to explain as to why the appeal was not filed on the

last date of hearing, but it must also explain each day's delay

thereafter. This law has been toned down substantially to the

extent that now the quantum of delay has not been considered

to be material. What has been considered to be material is the

bona fides of the parties in pursuing the appeal/application or

taking the steps for filing the appeal/application. It has also

been observed by the Apex Court that while condoning the

delay, the Court must adopt a pragmatic and practical

approach and more so, when the appeal is being filed by the

State, certain amount of delay in taking a decision by the

various level of the Government functioning is inevitable. It

has also been observed in some of the decided cases that

prima facie, the appeal must also show that it has some merit

for consideration, before the delay could be condoned.

Reliance in this regard can be placed on the following

judgments: Collector, Land Acquisition, Anantnag & Anr.

Vs. Mst. Katiji & Ors.; AIR 1987 SC 1353, State of Haryana

vs. Chandra Mani & Ors.; AIR 1996 SC 1623 and State (NCT

of Delhi) vs. Ahmed Jaan; (2008) 14 SSC 582.

5. Keeping in view the above broad parameters, I feel that

there is prima facie merit in the appeal itself which persuades

the court to consider the appeal on merit rather than dismiss

the same on technicalities of being barred by time. The merit

in the appeal is that ex facia the sentence to which the

respondent/accused was sentenced, in a heinous crime of

rape, is grossly inadequate.

6. Having regard to the totality of circumstances, in my

opinion, as 'sufficient cause' was shown, the delay of 269 days

in filing the appeal is condoned.

7. The application is allowed.

Criminal Appeal No.524/2011

8. Now comes the question of merit of the order of sentence

dated 26.5.2010 passed by the learned Sessions Judge.

9. The main submission of the learned APP for the State is

that the respondent/accused was convicted for an offence

under Section 376/312 IPC and was sentenced by the learned

Sessions Judge to a grossly inadequate sentence. It has been

stated that the sentence which has been imposed on the

respondent/accused under Section 376 IPC is rigorous

imprisonment for a period which is already undergone by him

during the trial of the case with a fine of Rs.75,000/-. The

period of rigorous imprisonment, which the

respondent/accused has undergone, is only 15 days.

Therefore, in effect, it means that the respondent/accused was

sentenced to 15 days of rigorous imprisonment and a fine of

Rs.75,000/-, in default, simple imprisonment of one year. So

far as offence under Section 312 IPC is concerned, similarly,

he was let off on the period undergone and a fine of

Rs.25,000/-, in default, six month's simple imprisonment. The

entire amount of fine was to be paid as compensation to the

victim.

10. The learned APP has contended that the

respondent/accused has been held guilty of the most heinous

crime of rape on an innocent victim. It has been

stated by him that the respondent/accused was working as a

driver of a van which was used for ferrying the children to the

school and back to their homes. Sometimes, teachers also

used to travel by the same vehicle. It has been alleged that

the respondent/accused had not disclosed his marital status to

the victim and on 1.1.2007, on which day, the festival of Eid

fell, the respondent/accused took the prosecutrix to

Nizamuddin Mosque on the pretext of offering prayers and

thereafter, took her to Old Fort and committed rape upon her

against her consent. This nefarious act was repeated by the

respondent/accused on two other occasions, that is, on

17.2.2007 and 5.5.2007. It has also been stated that the

victim had become pregnant because of this illicit relation

established by the respondent/accused and thereafter, the

respondent/accused, firstly, persuaded the victim to terminate

the pregnancy but as she did not accede to the suggestion, the

respondent/accused, in a surreptitious manner, took the victim

to the doctor and gave some medicines by misrepresentation

because of which she suffered bleeding and the foetus had to

be aborted. It has been contended by the learned APP that

the respondent/accused, during the course of trial and after

the examination of the victim, had seen the writing on the wall

and accordingly, pleaded guilty to the charges against him.

Having done so, it is contended that the learned Sessions

Judge had fallen into grave error by sentencing the

respondent/accused to a rigorous imprisonment of 14 days

only, as the period having been undergone, apart from fine of

Rs.75,000/- to be paid to the victim. The learned APP has

contended that the reasons given by the learned Sessions

Judge for this mild sentence are totally bereft of any merit,

erroneous and show misplaced sympathy to the offender. It

is, therefore, contended by him that the respondent/accused

deserves to be sentenced to a most deterrent punishment so

that such like persons are deterred from committing similar

offences, as the crimes against the women are increasing.

11. As against this, the learned counsel for the

respondent/accused has raised the question that the plea of

guilt by the respondent/accused was doubtful. It has been

stated that the respondent/accused had not pleaded guilty to

the charges but it was only in his statement under Section 313

Cr.P.C. that the respondent/accused is stated to have pleaded

guilty. The said plea of guilt by the respondent/accused in his

statement under Section 313 Cr.P.C. cannot be considered to

be a plea of guilt by the court. It is contended that the

respondent/accused could not have been convicted at all.

Reliance in this regard has been placed on a case titled

Gamdoor Singh vs. State of Punjab; 1981 Crl. L.J. 1912.

12. So far as the question of enhancing the sentence of plea

of guilt is concerned, it has been stated by the learned counsel

that any enhancement of sentence on the accused would be

violative of Article 21 of the Constitution of India. In this

regard, the respondent/accused has placed reliance on a case

titled Thippaswamy vs. State of Karnataka; AIR 1983 SC

747. Extending this argument further, it was contended by

the learned counsel that adequate and special reasons for

imposing punishment, which is lesser than the one which is

sought to be imposed on the respondent/accused, has to be

considered sufficient to meet the ends of justice. It has also

been stated by the learned counsel for the respondent/accused

that by enhancing the punishment of the present petitioner, it

will not do any service to the society and, therefore, there is

absolutely no necessity of enhancing the sentence to further

incarceration. It is also contended that so far as the

respondent/accused is concerned, he has already compensated

the victim by paying a sum of Rs.1 lac or so.

13. I have carefully considered the submissions made by the

respective sides. I have also gone through the impugned

order. I do not agree with the submissions of the learned

counsel for the respondent/accused that the plea of guilt of the

respondent, during the recording of statement under Section

313 Cr.P.C., cannot be said to be a plea of guilt. In this

regard, no doubt, the learned counsel has placed reliance on

the Single Bench judgment of the Punjab and Haryana High

Court. I have gone through the said judgment. No doubt,

there are observations made to that effect in the judgment

but, I do not feel that this is correct legal position with regard

to the question of plea of guilt and the imposition of sentence.

I do not agree that law makes any distinction between the plea

of guilt recorded at the time of framing of the charge or at the

time of recording of the statement under Section 313 Cr.P.C.

or subsequent thereto. In the instant case, no doubt, the

respondent/accused had pleaded not guilty to the charge but

thereafter, the Prosecution adduced its evidence. The

prosecutrix appeared and her statement was recorded wherein

she fully supported the case Prosecution case, but the

respondent/accused, seeing the writing on the wall, decided

not to contest the matter and pleaded guilty. The learned ASJ

recorded the statement of the respondent/accused and it

satisfied himself fully that the statement was being made by

him voluntarily without any threat, coercion or inducement.

Therefore, this has to be treated as a plea of guilty

notwithstanding the fact that it was not said before the learned

trial court. I accordingly feel, so far as this submission made

by the learned counsel for the respondent is concerned, it is

bereft of any logic or merit. The respondent/accused, in the

instant case, has admitted his guilt without any fear, coercion

or inducement immediately when he saw the writing on wall

inasmuch as the statement of the prosecutrix have been

recorded, who had given a graphic description about the

incident which had taken place and was done by the

respondent/accused. The judgment of Gamdoor Singh's case

(supra) is not applicable to the facts of the present case.

14. So far as the sentencing is concerned, no doubt, the

offence of rape under Section 376 IPC is punishable with

imprisonment not less than seven years, which may be for life

or for a term which may extend to ten years; and the offence

of abortion of an unborn child under Section 312 IPC is

punishable with imprisonment of either a term which may

extend to three years or with fine or with both.

15. It is stated by the learned counsel for the

respondent/accused that both these offences may not be

visited with heavy punishment as the respondent/accused is

the only bread-earner. It is also stated that he has two

daughters and old parents and, therefore, the learned Trial

Court had taken a lenient view.

16. The Apex Court in case titled State vs. Krishnappa; AIR

2000 SC 1470, has observed as under:-

"Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."

17. On the contrary, the mandate of the Apex Court

repeatedly in different judgments has been that the offence of

rape requires an exemplary treatment and adopting of liberal

attitude by imposing meager sentences or taking too

sympathetic view, merely on account of lapse of time, in

respect of which the respondent/accused has been charged,

will be counter productive meaning thereby the Apex Court has

expressed its consent that the court must impose adequate

punishment on the offender so as not only to deter him but

also to deter the like minded persons. The Apex Court has

also held that while sentencing an offender under Section 376

IPC, it is the nature and gravity of the crime but not the

criminal, which is germane for consideration of appropriate

sentence in a criminal trial. Leniency in matters involving

sexual offences is not only undesirable and it goes against the

public interest. Such types of offences are often dealt with

severity so as not only to show deterrence qua the victim but

also against the general public.

18. Reliance in this regard is placed on State vs. Parasram &

Anr.; 2005 SC 3629 and State vs. Makhmal Khan; AIR 2005

SC 3667.

19. In the instant case, the learned Sessions Judge has given

an erroneous reason for imposing lesser punishment. The first

consideration with which the learned Sessions Judge has got

swayed is the fact that the respondent/accused has two

brothers, a wife, two children and old age parents and he is

the sole bread earner. These factors are not directly

responsible. On the contrary, it is a case where, if facts are

kept in mind, the respondent/accused has not only

misrepresented to the victim that he was unmarried but has

tricked her into physical relationship by misusing his position

as a driver of a school van. Even on one occasion, he has

given her edibles laced with sedatives and then subjected her

to rape. The respondent/accused has made even the

unfortunate victim pregnant, which was then surreptitiously

got terminated. On account of this episode, in the life of the

victim, not only she had gone into depression, but the entire

family was devastated. She has also been removed from the

job and had become not only financially and economically but

also morally destitute as noted by the learned ASJ. These

considerations, as a matter of fact, should have been a ground

for sentencing the petitioner to most severe punishment rather

than it has been made as a ground for taking a lenient view of

the matter by the learned Sessions Judge. Erroneously, the

respondent/accused has acted in most calculated manner to

satisfy the lust.

20. In my considered opinion, this is an erroneous and a

perverted reasoning given by the learned Sessions Judge in

sentencing the respondent/accused to inadequate punishment.

I do not agree with the contention of the learned counsel for

the respondent/accused that enhancing the sentence of the

respondent/accused would result in violation of his rights

under Article 21 of the Constitution of India or that adequate

and special reasons for enhancing the sentence need to be

recorded. In totality of circumstances, I feel that the sentence

which has been imposed on the respondent/accused is grossly

inadequate and makes mockery of the processes of law, in

case the same is permitted to stand. No amount of

compensation, which is paid by the offender to the victim, can

compensate her for the loss of her honour and prestige or for

that matter, do away the scar which she has suffered.

21. I, accordingly, set aside the order of sentence dated

26.5.2010 passed by the Sessions Judge and enhance the

sentence of the respondent/accused to a period of seven years

rigorous imprisonment apart from the fine imposed by the

learned ASJ for an offence under Section 376 IPC. Similarly,

for the offence under Section 312 IPC, he is sentenced to

rigorous imprisonment of one year and the fine already

imposed. Both the sentences are to run concurrently. The

respondent/accused be accordingly taken into custody.

22. The appeal accordingly stands allowed.

23. A copy of the order passed by this court be supplied to

the respondent/accused free of cost.

V.K. SHALI, J.

MAY 31, 2012 'AA'