Umed Singh vs State (Nct Of Delhi)
2013 Latest Caselaw 3267 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 233/2010
                         Judgment delivered on:        29.07.2013

      UMED SINGH                                          ..... Appellant

                         Through:     Mr. S.B. Dandapani, Advocate

                         versus

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

                         Through:     Mr. Sunil Sharma, Additional
                                      Public Prosecutor for the State

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MS. JUSTICE INDERMEET KAUR

%                        JUDGMENT

KAILASH GAMBHIR, J.

1. In the immortal words of Dag Hammarskjöld : "Forgiveness is the

answer to the child's dream of a miracle by which what is broken is made

whole again, what is soiled is made clean again."

But there are certain devastating moments in one‟s life, which

cannot be repaired, the loss that cannot be forgotten or forgiven. Each

time we hear of a rape case, or any sort of assault against women, it gives

a chill in the spine, daunts the faith overshadowing the entire system and

shuns away the faith of the society at large, it is one of such crimes that

definitely do not deserve to be assuaged.

2. „Rape‟, one of the most barbaric and heinous crimes. The cases of

rape, gang rape and digital rape are on increase and perpetrators of this

inhuman and brutal crime are worse than even the beasts and deserve to

be dealt with a heavy hand. They need to be dealt with sternly and

severely. Its a gruesome and ghastly act of rape wherein a man acts as a

slave of his martinet and lowers himself to a baffling extent for the sole

purpose of achieving gratification of his carnal desire. The case at hand

very peculiarly exposes the inferior bequests of nature in the appellant

who is a man of about 35 years of age and made an attempt to commit

rape on a 2 year old female child.

3. The appellant has preferred the present appeal under Section

374(2) Cr.P.C to assail the judgment dated 25.5.2009 passed by the

learned Additional Sessions Judge thereby convicting the appellant for

committing an offence under Section 376(2)(f) of the Indian Penal Code,

1806 for Rigorous Imprisonment for life, along with a fine of Rs.10,000/-

and in default of payment of fine to undergo rigorous imprisonment for a

period of three years.

4. At the outset, Mr.Dandapani, counsel representing the appellant

candidly conceded to the conviction order but pleaded for showing some

leniency on the sentence part and scale it down to the minimum period of

sentence of 10 years rigorous imprisonment as provided under Section

376 (2) (f) IPC, instead of maintaining maximum sentence of life

imprisonment as awarded by the learned Trial Court. Counsel also argued

that the appellant was of 35 years of age and at the relevant time was

working as a labourer at Shakur basti area in Delhi and due to many

deprivations in his life and also due to his economic and social condition,

he should be given a chance to reform himself instead of confining him

into jail for his entire life. Counsel also submitted that the appellant has

no criminal antecedents and his jail record is also satisfactory and he has

already spent 10 years including the period of remission earned by him.

Therefore, due to these mitigating circumstances, the appellant deserves

one opportunity for his reformation than to get punished for rest of his

life. In support of his arguments counsel for the appellant placed reliance

on the judgment of the Apex Court, which are as under:

1. TapanBiswas V. State, 2010 Cri.LJ (NOC) 60 (DEL.)

2. Bavo alias Manubhai Ambalal Thakore v. State of Gujarat, (2012) 2

SCC 684

5. Mr. Sunil Sharma, APP for the State on the other hand argued that

the appellant had brutally committed rape of a two year old small baby

girl and it is not rape alone but the way the appellant has ravished the

small child warrants maximum punishment as envisaged under Section

376 (2) (f) of the Indian Penal Code, 1806, as there being no room of any

leniency for such a barbaric and beastly person. In support of his

arguments, counsel for the respondent placed reliance on the recent

judgment of the Apex Court in the case of Shyam Narain V. The State of

NCT of Delhi, AIR 2013 SC 2209.

6. We have heard learned counsel for the parties at considerable length

and given our thoughtful consideration to the arguments advanced by

them. We have also gone through the record of the case and the

judgments cited by counsel for the parties.

7. Before we proceed to take a view on the quantum of sentence, it

would be appropriate to give brief narration of the facts of this case. The

facts as unfolded by the prosecution are that on 10.10.2006 at about 06:15

p.m. an information regarding the quarrel at Road No. 53-A, West

Punjabi Bagh, Near S.P.M. College was received in P.S. Punjabi Bagh. It

was recorded vide DD no. 34 B, the same was handed over to ASI

Ramphal Singh for investigation. On receiving the said DD ASI Ramphal

alongwith W/H.C. Sukhda and constable Brij Pal rushed at the spot,

where it was found that the accused/appellant was trying to abscond with

a two year old child in his hands but the public at large caught hold of the

accused and gave him several beatings. On enquiry it was brought to the

notice of the police that the accused/appellant had tried to have an

intercourse with that 2 year old infant as blood was found oozing out

from her private parts and also blood stains were noticed on the leg of the

female/infant. Thereafter, the female child was taken to Sanjay Gandhi

Memorial Hospital for medical examination. Both the victim and the

accused were examined vide MC No. 18908/06 and MLC no. 18913

respectively. Shri Krishan Kumar, PW-2 reached the hospital and

identified the said female infant as his daughter. Criminal law was set in

motion, F.I.R, marked as Ex. PW-5/A on record was registered at P.S.

Punjabi Bagh and further investigation was handed over to Urmil Sharma

who alongwith constable Brijpal reached the spot. ASI Urmil Sharma

prepared the site plan, Ex. PW-11/D, seized the garments of the deceased

vide seizure memo, Ex.PW-11/A and at the instance of SI Ramphal

Singh, arrested the accused and recorded the disclosure statement,

Ex.PW-11/ E. After completion of investigation, final report u/s 173

Cr.P.C was prepared and was filed in the court of Metropolitan

Magistrate who after completing all the formalities committed the case to

the court of sessions for trial. On 28.05.2007, case under section 363/ 376

IPC was framed against the accused to which he pleaded innocence. The

charge was later altered to Section 363/ 376 (2) (f) IPC, as the girl alleged

to have been raped was less than 12 years of age.

8. In order to prove his case, the prosecution examined as many as 12

witnesses, namely, Dr. Dipti Goel, PW-1, Sh. Krishan Kumar, PW-2, Shri

Bhupinder Singh, PW-3, Dr. Sameer Pandit, PW-4, HC Satpal, PW- 5,

Smt. M Eera, Pw-6, Const. Brijpal, PW-7, Dr.P.C. Prabhakar, PW-8, HC

Mohinder Singh, PW-9, Constable Jai Prakash, PW- 10, ASI Ramphal

Singh, PW-11, ASI Urmil Sharma, PW-12.

9. As per the MLC proved on record as Exhibit PW 1/A, the said two

years old female child was brought to Sanjay Gandhi Memorial Hospital,

Mangolpuri on 10.12.2006 at about 7.30 p.m. with alleged history of

sexual assault and she was immediately referred to a gynaecologist, Dr.

Dipti Goel by the CMO and after her medical examination the

gynaecologist found that there was a mild swelling of both labia majora.

Hymen was torn not bleeding. A 0.5 cm tear was present on posterior

fourchette. (In mid line posterior of perineal), which was bleeding.

Bleeding stopped after five minutes of pressure at night. Perineal and

vagina swab were taken by the said doctor and the same were handed

over to IO for forensic opinion. The said Dr. Dipti Goel was examined as

PW- 1 and in her cross-examination she said that sexual assault of the

said child cannot be ruled out. She also proved her report from portion A

to A on record which is exhibit PW- 1/A. The said MLC was proved in

the evidence of PW-4, Dr. Sameer Pandit, who was on duty as CMO in

SGM Hospital at the relevant time. In his examination PW-4 deposed that

after local examination he found following injuries on the body of the

child:-

1. bruise right forehead 2 cm x 2 cm size.

2. bruise swelling on right cheek 1 x 1 cm.

3. bruise left outer canthus of left eye 1 x 1 cm.

3. Abrison right chest laterally 1 x .05 cm.

5. bleeding per viganum with swelling of both labimajora.

10. PW-3, Bhupinder Singh is the star witness of the prosecution. As

per his deposition in the Court and his statement recorded under Section

161 of the Code of Criminal Procedure, 1873, he was on duty at SPM

college, West Punjabi Bagh on 10.12.2006 when at about 6.00 p.m.,he

heard cries of a child near the boundary wall of SPM college, in front of

Kothi No. 18. When he reached there, he saw that accused was having a

female child in his lap and pajami of the child was removed and zip of the

pant of the accused was open. Blood was oozing from the vagina of the

female child. On seeing all this, he raised an alarm and then accused

started running with the female child. He chased the accused and on

seeing this, some public persons caught hold of the accused and gave him

beatings. Appellant was over powered and female child was saved. The

police came there, when somebody had made a call to the police and the

appellant was handed over to the police. The deposition of PW-3 clearly

demonstrates the cruel intentions of the accused in the present case.

11. For a second, oscillating from the case at hand, in the midst of

triggered national outcry over the treatment of women, there are several

females suffering at the hands of certain psychotic males. The Asian

Human Rights Commission reported that child rape cases jumped from

2,113 cases in 2001 to 7,112 in 2011 in India. The unflinching reality but

also deplorable, that not just one but many female children in their tender

age, just bloomed into a flower on mother earth, having no clue of the

demeaning crime, are made to face such cruel realities of life. The

country where a female child is kept on the same pedestal as goddess

„laxmi‟ or „durga‟ , is the same place where some pervert members of the

same society dehumanize the women by attacking her body and ruining

her chastity. Rape is an aberrant, atrocious, horrendous and monstrous

burial of her dignity in darkness. It is a crime against the entire society.

With the advent of Justice Verma Committee, better, stringent procedures

have been adopted, still a lack of deterrence is felt. Despite their being a

social awakening, there is no decrease rather the cases are increasing

manifolds and in order to deal with them, one can only be harsh but

benignant. The viciousness and brutality of crime in such like cases is

immeasurable. A child who in the initial years of her birth, away from the

shackles of life, in her sweet symphony and beautiful innocent world

cannot even echo the outrage that a female would go through, the

torment, the wrath that would put her life to a standstill, and will not even

remember when from an infant would reach the age of an adolescent that

such a satanic moment was ever a part of her life when a man , aged like

his father misused her physically for his personal desires, although it

would leave a scar on her and her family members forever.

12. In the case at hand, the appellant was of 35 years of age and he not

only committed the most barbaric act of raping a 2 years old girl child

rather also inflicted many injuries on the body of such a delicate child

while committing such a ghastly act. Every child is said to be the most

precious gift of God. A two years old child, should be seen surrounded

with toys and games, with love and affection of her parents and the

family members, but not be made to face such encounters with such

beastly persons, who only live with a prime object to satisfy their lust

and with such aberrant and obnoxious psychology, the accused for the

want of sexual pleasure pounced upon such an infant girl child to commit

rape upon her in a highly brutal and inhuman manner totally unconcerned

with moral, social human values and norms of our society. We wonder

such kind of deadly instinct may not be prevailing even in the most

dreaded animals. What kind of leniency or mercy such a man can

deserve. Can it be said that a person fully grown up at the age of 35 years

of age was not conscious of the fact that as to what kind of crime he was

committing and upon whom? The Rape has been described to be more

heinous than a crime of murder, as in a rape it is not only the body of the

person but even her soul gets destroyed. What a traumatic experience

such an infant child would undergo for the rest of her life is just

indescribable. The Apex Court in a recent judgment in the case of Shyam

Narain Vs. The State of NCT of Delhi, AIR 2013 SC 2209 was

confronted with an identical case where the appellant was facing

prosecution for committing a brutal rape of 8 years old child. Repelling

the contention of the appellant to reduce his sentence from life

imprisonment to minimum 10 years of sentence, the Hon‟ble Apex Court

in the following paras held as under:-

"22. Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the Appellant is excessive or deserves to be modified. The learned Counsel for the Appellant would submit that the Appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniosity. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility

of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned Counsel for the Appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.

23. Ex consequenti, the appeal, being sans merit, stands dismissed."

13. The present case is not at variance with the case dealt with above by

the Apex Court in the above judgment, but rather more appalling. In the

facts of this case the child was only two years of age and the appellant

was an unmarried person with no responsibility to take care of any

family of his own or otherwise while the facts before the Hon‟ble

Supreme Court in the case cited above was that the child was 8 years old

and the accused was a married person with a wife and four children, still

the Hon‟ble Apex court keeping in mind the gravity of the offence, the

fact of pain and mental agony that would be borne by the victim

throughout her life would be immeasurable, on moral, legal and ethical

grounds made the accused to suffer for his life as well.

14. Before parting with the judgment, with deep concern, we may point

out that leniency in such like cases would accord a wrong message to the

society. Rather by deft modulation, sentencing process should be stern

where it is called for, especially in the cases, where one tends to lark with

human body and soul. The factors to be considered while adjudging a

crime like the one in the present case are its atrocities, the conduct of the

criminal and the defenceless and unprotected state of the victim. All

sexual assaults on female children are not reported and do not come to

light yet there is an alarming and shocking increase of sexual offences

committed on children. It is majorly because children of such a tender age

are ignorant of the gruesome act and are not able to battle against them.

They become an easy prey for the lusty fiends who display an insidious

art of luring female children and young girls. Therefore, such offenders

who are peril to the urbane society should be mercilessly and relentlessly

punished especially wherein a rape of a minor child is involved, it should

be done in the severest terms. The country saw an increase of 336% of

child rape cases in comparison to the last decade as per the statistic report

of National Crimes Record Bureau. It has been noticed that out of the

entire female population, 30% of the rape cases involve minor girl child

between 1-7 years of age, and these are frequently noticed in the most

downtrodden and backward classes/villages, where there exist no whiff or

knowledge of any law prevailing in the society but the entire concept is

based on male chauvinism. It would be important in this regard that

certain steps imparting knowledge of law to all the classes, explaining

people about the consequences of any sort of harm being caused to the

women can make them suffer drastically should be adopted. The need of

the hour is to sensitize the functioning at each front, the State shall also

necessitate much quicker resort to the problems of each and every

aggrieved female child or her family. For the very purpose, the State with

the help of the Bar Council of India, various NGO‟s, RWA‟s and Bar

Associations can arrange such campaigns or education programmes and

find a reach to every nook and corner of the society. There has to be

deterrence in the mindset of any person having any such obnoxious and

dissuading thoughts. A man before even developing that beastly thought,

should feel that eke in his nerves, that a moment of pleasure, or a mere

fulfilment of a few minutes desire with such horrendous intentions can

cost him his entire life. A man has to understand that a female has a

sacred place in our society which she can never be deprived of and

anyone who even thinks to make such an attempt would never be spared

at the hands of justice.

15. In the light of the above discussion and keeping in view the mandate

of law in the aforesaid factual matrix, wherein such a small girl at such a

tender age has been made to suffer for no fault of hers, our judicial

conscious and discretion compels us to maintain the sentence of rigorous

imprisonment for life as awarded by the learned Trial Court. Accordingly,

we upheld the judgment of conviction and the order of sentence as passed

by the learned Trial Court.

16. There is no merit in the present appeal. The same is hereby

dismissed.

KAILASH GAMBHIR, J

INDERMEET KAUR, J JULY 29, 2013