Sandeep Kumar vs State
2014 Latest Caselaw 3490 Del

$~R-2A
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 24.7.2014
                                    Judgment delivered on : 04.8.2014

+      CRL.818/2001
       SANDEEP KUMAR                           ..... Appellant
                           Through       Mr.R.N.Sharma, Advocate.
                           versus
       STATE                                   ..... Respondent
                           Through       Ms.Kusum Dhalla, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 23.10.2001 and 31.10.2001 wherein the appellant

Sandeep along with co-accused Sunny had been convicted under Section

366 read with Section 34 of the IPC and each of them had been directed

to undergo RI for 5 years and to pay a fine of Rs.1000/- in default of

payment of fine to undergo SI for six months.

2 The co-accused Sunny was declared a juvenile and his matter was

remanded back to the Juvenile Justice Board.

3 Record shows that on the statement of 'A' (PW-1) the present FIR

has been registered under Sections 366/376/34 of the IPC. Besides the

present petitioner and co-accused Sunny there were two other persons

who were involved in the incident. They were Tinku and Sunil Prasad

Tiwari both of them had been tried for charges under Section 376 of the

IPC. In the course of the trial both of them had expired.

4 As per the version of PW-1 she along with her friend Sunita had

gone to Baba Mandir (temple) at 5.00 p.m. on the fateful day i.e. on

19.02.1998. On their way back when they reached at Kakrola Road the

four accused persons i.e. Tinku, Sunil Prasad Tiwari, Sandeep and

Sunny accosted them; Tinku and Sunil Prasad Tiwari often used to visit

their homes. They allured the victim and her friend to accompany them;

they were taken to a room in a plot near Surya Kiran Nurshing Home.

Tinku and Sunil Prasad Tiwari remained inside the room and the other

two persons including the present appellant went outside. Tinku raped

Sunita and Sunil Tiwari committed rape upon PW-1. The role attributed

to the present appellant and the co-accused Sunny was that they

remained outside and in fact locked the room from outside. Appellant

had also brought a bottle of liquor which had been consumed by the

accused persons.

5 Investigation was marked to SI Avtar Singh (PW-14) who along

with constable Baljit (PW-10) reached the house of the victim. Her

statement Ex.PW-1/A was recorded pursuant to which the present FIR

was registered. The rukka was handed over to Constable Baljit

(PW-10). The site plan Ex.PW-14/B was prepared. Exhibits were

seized from the spot which included a bed sheet and gudari vide memo

Ex.PW-10/A and Ex.PW-10/H respectively. Sandeep was arrested at

the instance of the mother of the victim and on the same day his

personal search was conducted vide memo Ex.PW-10/E.

6 The medical examination of the victim was also conducted.

During the course of investigation her date of birth from her school

record was obtained and the Principal of the Govt. Girl Senior

Secondary School No.2, Najafgarh through Ex.PW-4/B evidenced her

date of birth as 06.2.1984. Her bony age was conducted and X-ray

plates were examined by Dr. Rajiv Chaudhary (PW-3) opining her age

to be between 12 to 14 years. On both counts the trial judge had

correctly concluded that the victim was a minor on the date of the

offence. This was in brief the version of the prosecution.

7 On behalf of the appellant arguments have been addressed in

detail. The main gist of the arguments of the learned counsel for the

appellant is that the version of PW-1 in her cross-examination shatters

her examination in chief, as if the version is read in its entirety, it shows

that the victim had not been lured by the accused to accompany them,

but she had gone on her own. This was her own admission in one part

of her cross-examination to which attention has been drawn. Further

submission being that PW-1 in her cross-examination has also admitted

that she did even know the name of the present appellant; his description

has also not been given. In these circumstances, it was incumbent upon

the investigating officer to have got the TIP of the appellant conducted

but no such procedure was adopted. To support his submission learned

counsel for the appellant has placed reliance upon 1995 Cr.L.J. 3974

Shyam and Anr. Vs. State of Maharashtra, MANU/MH/0573/2005

(High Court of Bombay) Prashant Dnyanraj Thorat Vs. State of

Maharashtra and 1996 Cr.L.J. 2242 Jitendriya Palo Vs. State of Orissa.

Further, submission of the learned counsel for the appellant being that

the appellant was 18 years and 4 months of age as on the date of the

offence; he had just attained majority. He has suffered a long and

protracted trial for 16 years. In case if his conviction is not set aside the

provisions of the Probation of Offenders Act, 1958 may be applied.

Under Section 360 of the said Act he may be released on probation.

On the point of sentence learned counsel for the appellant has placed

reliance upon AIR 1979 SC 680 Dilbagh Singh Vs. State of Punjab and

AIR 1983 SC 654 Masarullah Vs. State of Tamil Nadu

8 Arguments have been countered. It has been pointed out that on

no count does the impugned judgment call for any interference. It is

submitted that the testimony of the victim is clear and categorical. The

role attributed to the present appellant is also unequivocal. He had

participated in the crime along with the co-accused and had enticed the

victim knowing fully well that she would be subjected to an illicit and

illegal activity. On the point of sentence, it is pointed out that none of

the judgments cited by the learned counsel for the appellant show that

probation had been granted for the offence of such a nature. The court

has already been lenient in granting sentence of only 5 years when this

offence is punishable up to 10 years.

9 Arguments have been heard. Record has been perused.

10 PW-1 is the star witness of the prosecution. She has on oath

deposed that on the date of incident she was studying in 7 th class in the

Government Girls Senior Secondary School, Najafgarh. She and her

friend Sunita, who was residing in her neighbourhood and was studying

in the same school, were going to the temple on the fateful day at about

7.00- 7.30 p.m. When they reached at Kakrola Road Tinku, Sunil

Tiwari, Sandeep and Sunil met them. Tinku suggested they would

accompany the girls to their homes but PW-1 and her friend refused. On

insistence of the accused persons PW-1 and her friend accompanied

them. They were taken to a room behind the temple. Sandeep and Sunil

then left the room. Sandeep had also brought a liquor bottle which was

given to Tinku; while leaving accused Sandeep and Sunil locked the

door from outside. Sunil Tiwari had committed rape upon PW-1 and

Tinku committed rape upon her friend. After some time Sandeep and

Sunil opened the door; they were threatened by Tinku that this incident

should not be disclosed to anyone. This witness was subjected to a

lengthy cross-examination by the different counsels appearing for the

different accused. PW-1 admitted that she knew the name of Tinku and

Sunil Tiwari but she did not know Sandeep and Sunil by their name.

She learnt their name when they were called by accused Tinku in the

room. Tinku was on visiting terms with PW-1. He used to visit her

house along with Sunil Tiwari. She denied the suggestion that she went

outside with Tinku on earlier occasions. Witness was confronted with

her earlier statement which was recorded before the Magistrate

Ex.PW-1/A. In that statement she had stated that Sunil and Sandeep

were outside; she had not spelt out the detail why they were standing

outside. Sunil and Sandeep had locked the door. This so-called

improvement has been highlighted by the learned counsel for the

appellant to substantiate his submission that the witness had given

exaggerated version in court thus belying her statement. In one part of

her cross-examination PW-1 has admitted that they had accompanied

the accused persons to the room on their own. Trite it is to state that no

one sentence can be extracted from a statement of a witness to give it a

meaning which otherwise would not be evident on the reading of the

version in its entirety. Version of PW-1 is clear, cogent and unequivocal.

This is to the effect that both PW-1 and Sunita were known to Tinku and

Sunil Tiwari. On their way back from the temple on the fateful day they

met Tinku and Sunil Tiwari, Sandeep and Sunny. On their insistence

they accompanied them; Tinku and Sunil Tiwari were on visiting terms

and were known to PW-1. The name of the appellant Sandeep and co-

accused Sunil were learnt by her later on when they were called by co-

accused Tinku by their name. Specific role has been attributed to the

present appellant. Not only was he present at the initial stage at the

time when the girls were lured to accompany the accused persons but at

the time when Sunil Tiwari and Tinku entered the room to commit rape

upon the girls. The present appellant along with co-accused Sunil had

stood vigil outside the room. He had even locked the door of the room.

Sandeep had brought a bottle of liquor which had been consumed by all

the accused. Thereafter, after some time, the appellant Sandeep had

unlocked the door.

11 This version of PW-1 has remained un-assailed and has all the

ingredients which are essential for the offence under Section 366 of the

IPC. Under Section 366 of the IPC it must be established that

kidnapping or abduction of a woman had taken place with an intent that

she may be either compelled to marry against her will or that she may be

forced or seduced to illicit intercourse. The testimony of PW-1

established all these aforesaid essentials qua the present appellant.

12 The submission of the learned counsel for the appellant that the

identity of the appellant was not established is also negatived by the

version of PW-1. Although PW-1 did not specifically know the

appellant Sandeep by his name yet she learnt his name in the course of

the incident when he was called out by his name by his friend. Sandeep

was arrested on the same day. It is not the case of the appellant Sandeep

that he was not known to the co-accused and that he had been falsely

roped in for any particular motive. In fact in the statement of the

appellant recorded under Section 313 Cr.P.C. he had pleaded a bare

denial. No specific defence has also been set up by the appellant as to

why the victim had falsely taken the name of the present appellant had it

not been the true picture. In this factual scenario, it was not incumbent

upon the investigating officer to have got the TIP conducted as is the

argument of the learned defence counsel.

13 The fact that the victim was a minor has also been established

through cogent evidence. Her date of birth has been proved through

PW-4 evidencing it to be 06.2.1984. On the date of offence which was

19.02.1998 she was a minor. This has also been corroborated by her

ossification report Ex.PW-3/A conducted through her X-ray plates

Ex.PW-3/1-15. The conviction of the appellant under Section 366 of the

IPC was well founded. It does not call for any interference.

14 On the point of sentence it has been submitted that the appellant

has suffered a long protracted trial of 16 years and on the date of offence

he was just 18 years and 4 months of age. He has now travelled in life;

he is a married man with family; there would be no useful purpose in

sending him back to incarceration and accordingly probation has been

pleaded for.

15 Nominal roll of the appellant reflects that as on 08.3.2002 out of

the total sentence of 5 years RI which had been awarded against him, he

had suffered incarceration of about 7 months 27 days besides remissions

earned of 20 days; meaning thereby that he had suffered a sentence of

8½ months on the date when he was granted bail which was out of the

total period of 5 year incarceration which has been awarded against him.

The role ascribed to the present petitioner was that he had remained

outside the room at the time when the offence was being committed.

Keeping in view the aforenoted background it appears that sentence

awarded to the appellant is excessive. Accordingly, RI 5 years is

reduced to RI for a period of 2 years. The fine amount remains

unaltered. Bail bond stands cancelled. Surety discharged. The appellant

be taken into custody to serve the remaining sentence. Appeal is

disposed of in the above terms.

INDERMEET KAUR, J AUGUST 04, 2014 ndn