Delhi High Court
Guddu Ram vs State Nct Of Delhi on 7 August, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07th August, 2014
+ CRL.A. 387/2013 & Crl.M.A.10658/2014
GUDDU RAM ..... Appellant
Through: Mr. K.Singhal, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Ritu Gauba, APP for the State.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
: SUNITA GUPTA, J. (ORAL)
1. Challenge in this appeal is to the judgment dated 24.08.2012 and order
on sentence dated 27.08.2012 in Session Case No.51/12 arising out of FIR
No.17/11, P.S. Palam village, vide which the appellant was convicted for
offences u/s 363/366 IPC and was sentenced to undergo Rigorous Imprisonment
for four years and to pay a fine of Rs.2,000/-, in default of payment of fine to
undergo Simple Imprisonment for one month for offence punishable u/s 363
IPC. He was further sentenced to undergo Rigorous Imprisonment for five
years and to pay a fine of Rs.3,000/-, in default to undergo Simple
Imprisonment for two months for offence u/s 366 IPC. Both the sentences were
to run concurrently. The convict was granted benefit of Section 428 Cr.P.C.
2. Prosecution case, in nutshell, is that the complainant Arjun Mehto made
a complaint regarding kidnapping of his sister `X' (hereinafter referred as
Prosecutrix) and stated that he along with his family was residing at Plot
No.188, Murga Farm, Nasir Pur Road, Near Gali No.5, Mahavir enclave, New
Delhi and was a scrapper by profession. He further reported that his sister was
enticed away by one Guddu Ram on 15.01.2011 at about 8 p.m when she was
washing utensils. It is this statement which culminated in registration of FIR u/s
363 IPC. During the course of investigation, age proof of the prosecutrix was
collected by SI Chand Singh from M.C. Primary School Girls, Mangla Puri,
according to which, date of birth of prosecutrix was 15.06.1999. On
14.02.2011, information was received that accused along with the prosecutrix
had been apprehended, as such SI Chand Singh along with police officials and
complainant Arjun Mehto went to village Korari, Bihar. Accused along with
prosecutrix was found there. On enquiry, accused Guddu produced marriage
certificate and affidavit. Accused was arrested. Accused and prosecutrix were
brought to Delhi. Statement of prosecutrix was recorded u/s 164 Cr.P.C. After
completing investigation, charge-sheet was submitted against the accused.
3. Accused pleaded not guilty to the charge u/s 363/366 IPC and claimed
trial.
4. In order to bring home the guilt of the accused, prosecution examined
eleven witnesses. The case of accused was one of denial simplicitor when all the
incriminating evidence was put to him while recording his statement u/s 313
Cr.P.C. He did not prefer to lead any evidence.
5. After considering the evidence available on record vide impugned
judgment, the appellant was convicted and sentenced as mentioned
hereinbefore. Assailing the findings of the learned Additional Sessions Judge,
the present appeal has been preferred by the appellant.
6. At the outset, Sh. K.Singhal, Advocate for the appellant referred to an
application bearing Crl.M.A.10658/14 sent by the appellant from jail for
submitting that the appellant does not challenge his conviction on merits.
However, he has already remained in jail for a period of more than three years
and four months, as such he be sentenced to the period already undergone.
7. Learned APP for the State however, has opposed the application moved
by the appellant on the ground that the prosecutrix was only 11-1/2 years old
when she was enticed by the appellant on the pretext that her uncle had met
with an accident and thereafter she was taken on motor cycle; forged affidavit
of marriage by affixing her photograph which was prepared when she was
detained there for one month; it is a crime against women and children and,
therefore, the accused deserves to be dealt with an iron hand. Reliance was
placed on Ajahar Ali V. State of West Bengal, (2013) 3 SCC (Cri) 794 and
Shyam Narain (2013) 3 SCC (Cri) 1.
8. The conviction of the appellant for offence u/s 363/366 IPC has rightly
not been challenged by learned counsel for the appellant on instructions from
the appellant, inasmuch as it has come in the deposition of the prosecutrix that
on 15.01.2012 when she was washing utensils outside her house, two boys came
and told her that her Mausa had met with an accident at Manglapuri and asked
her to accompany them and took her on a motorcycle. The pillion rider had
gagged her mouth and took her to Faridabad and kept her in a room for 5-6
days. Thereafter accused Guddu took her to village Khurari in train.
Thereafter she was brought to Delhi by the police. Her statement u/s 164
Cr.P.C was recorded. She further stated that accused might have pasted her
photograph on the affidavit otherwise she never got married with the accused.
She went on stating that the accused had not committed rape on her.
9. The factum of prosecutrix being a minor stands proved from the record
brought by PW-4 which reflected that proseuctrix was admitted in M.C.Primary
School Girls, Manglapuri and as per the school record, her date of birth was
15.06.1999. He also proved the affidavit of Motilal, father of the prosecutrix Ex
PW-4/C wherein he disclosed the date of birth of prosecutrix as 15.06.1999.
10. The factum of kidnapping of prosecutrix stands further proved from the
testimony of the complainant which finds corroboration from the testimony of
police officials. On receipt of information, SI Chand Singh and other police
officials along with her brother and uncle went to Bihar where accused was
apprehended and prosecutrix was recovered from his possession. Under the
circumstances by clinching evidence, prosecution had succeeded in establishing
its case u/s 363/366 IPC. No fault can be found with this finding of the learned
Additional Sessions Judge and, therefore, the same does not call for any
interference.
11. Coming to the quantum of sentence, the appellant is aged about 23
years. As per the nominal roll, he has undergone sentence of three years, five
months and fifteen days. Besides that he earned remission for five months and
22 days. His overall conduct has been reported to be satisfactory. He is not
involved in any other offence. Although the minor was kidnapped/enticed by
the appellant, however, the prosecutrix has deposed that during the period of
one month, she was not subjected to any sexual harassment by the accused.
Due to this reason she also refused to undergo her medical examination when
after recovery she was taken by the police to the hospital. Shyam Narain
(supra) was a case where a brutal rape was committed on an eight year old girl.
Therefore, Hon'ble Supreme Court refused to interfere in the sentence awarded
to the appellant. Ajahar Ali (supra) was a case of sexual harassment/outraging
the modesty of a minor and the appellant sought benefit of probation which was
declined by Hon'ble Supreme Court on the ground that if a person uses criminal
force upon a woman with intention or knowledge, that woman's modesty will
be outraged, then such a person is not entitled to the benefit of probation. In the
instant case at the cost of repetition it may be mentioned that there are no
allegations of commission of rape upon the prosecutrix. Moreover the appellant
has been in incarceration for a period of about three years and ten months.
12. Under the circumstances, ends of justice will be met if the substantive
sentence of imprisonment of the appellant is reduced to the period during which
he remained as undertrial in this case, however, leaving the portion of
imposition of fine as intact. Accordingly the appellant is directed to deposit the
fine with the Superintendent Jail and on deposit of fine, he be released if not
wanted in any other case.
The appeal as well as the application stands disposed of. The appellant be
informed through the Superintendent Jail for compliance. Trial Court record be
sent back.
(SUNITA GUPTA)
JUDGE
AUGUST 07, 2014
as
