Harish Aggarwal vs State Nct Of Delhi
2014 Latest Caselaw 3925 Del

$~R-1B & R-2B
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment reserved on :14.8.2014
                                        Judgment delivered on : 27.8.2014
+      CRL.A.134/2001
       HARISH AGGARWAL                                    ..... Appellant
                             Through          Mr.D.C.Mathur, Sr.       Advocate
                                              with     Mr.Shishir       Mathur,
                                              Advocate.
                             versus
       STATE NCT OF DELHI                                 ..... Respondent
                             Through          Ms.Kusum Dhalla, APP for the
                                              State.
+      CRL.A.149/2001
       YOGENDER AGGARWAL & ANR.                           ..... Appellants
                             Through          Mr.Mohit Mathur and Mr.Badar
                                              Mehmud, Mr. Shailesh Hussain
                                              and Mr. P. Mathur, Advocates.


                             versus
       STATE NCT OF DELHI                                 ..... Respondent
                             Through          Ms.Kusum Dhalla, APP for the
                                              State.
       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are three appellants before this Court; they are Harish

Aggarwal, Yogender Aggarwal and Sumitra Devi.

2 Harish Aggarwal was engaged to be married to the victim 'R'.

He has been convicted under Section 376 of the Indian Penal

Code, 1860 (IPC) and Sections 3 and 4 of the Dowry Prohibition Act,

1961 (hereinafter referred to as the 'said Act') and had been sentenced

to undergo RI for 5 years and to pay fine of Rs.5000/- in default of

payment of fine to undergo SI for 3 months for the offence under

Section 376 of the IPC; for the offence under Section 3 of the said Act

he had been sentenced to undergo RI for 1 year and to pay a fine of

Rs.10,000/- in default of payment of fine to undergo SI for 4 months.

For the offence under Section 4 of the said Act he had been sentenced to

undergo RI for 2 years and to pay a fine of Rs.10,000/- in default of

payment of fine to undergo SI for a period of 4 months.

3 Yogender Aggarwal was the elder brother of the accused and

Sumitra Devi was his mother. Both of them stood convicted under

Section 3 of the said Act and each of them had been sentenced to

undergo RI for 1 year and to pay a fine of Rs.10,000/- in default of

payment of fine to undergo SI for 4 months. All sentences were to run

concurrently. Benefit of Section 428 of the Cr.P.C. had been granted to

all the convicts.

4 Record shows that on 13.7.1997 an information was received vide

DD No.16A that a demand of Rs.5 lac was being made by one

bridegroom and he was not ready to solemnize the marriage till the

amount was paid. Investigation was marked to ASI Jagmal Singh

(PW-15) who along with Constable Naresh (PW-6) reached house

No.414, Katra Meghram Khari Baoli. Statement of the victim 'R'

(PW-1) was recorded. She disclosed that her marriage had been

arranged with Harish for 13.7.1997 at the Gola Banquet Hall at

G.T.Karnal Road. This arrangement related back to an incident of

23.6.1997 when Harish had come to her house at about midnight stating

that his vehicle had gone out of order. Since the family of Harish was

known to the family of PW-1, Harish was permitted to sleep in the

house of 'R' where her other family members were also residing.

Harish was asked to sleep on the roof top. At about 2.00 a.m. Harish

requested her for some water; she went upstairs to give him a water

bottle and at that point of time Harish committed rape upon her. Harish

did not want the matter to be reported to the police. At his request, his

parents and his uncles Mahesh Kumar and Hukum Chand were called in

order that some kind of an arrangement could be worked out. One

neighbor Kishan Gupta was also called. At that point of time the

families of both Harish and PW-1 agreed that to get over this incident,

marriage between Harish and 'R' be solemnized which was accordingly

fixed for 13.7.1997. In this intervening period, on the demand of Harish

and his family which included his mother Sumitra Devi, father Girdhari

Lal (since deceased) and Gayatri Devi (sister of Harish who had been

released on probation) and Yogender his elder brother, goods worth Rs.4

lacs had already been sent to their house. A fresh demand was made of

Rs.5 lacs on the date of the wedding i.e. on 13.7.1997 with a statement

that in case this demand was not fulfilled the marriage would not take

place. Since the parents of PW-1 could not fulfill this exorbitant

demand, a complaint was accordingly lodged with the police station

Lahori Gate.

5 In the course of investigation the accused persons were arrested.

Girdhari Lal and Yogender produced the dowry articles lying in their

house vide memos Ex.PW-13/A and Ex.PW-13/B which included a gold

chain, one ring and one air conditioner. The list of local expenses and

the advance receipt of the Gola Five Star Banquet Hall which had been

booked by Ram Avtar father of the victim, was also taken into

possession. Statement of the victim was recorded under Section 164 of

the Cr.P.C. (Ex.PW-11/C). Her MLC was conducted by Dr.Poonam

Singh (PW-17) which was proved as Ex.PW-17/A evidencing that the

victim had been subjected to sexual intercourse. Father of the victim,

Ram Avtar, had been examined as PW-2; her mother Usha Gupta was

examined as PW-3.

6 Statements of the accused were recorded under Section 313 of the

Cr.P.C. and para 6 of the judgment clearly notes that the fact that Harish

and his family were living up to 1996-97 in the neighborhood of PW-1

was admitted. It was admitted that the relationship between the family

of the complainant and the family of the accused was cordial and they

belong to the same 'gotra'. The other incriminating evidence was

denied. Relevant at this stage would it be to point out that file of the

trial court had been misplaced and on the direction of the High Court the

file was ordered to be reconstructed which was based on the record

available with the prosecution and the accused. In the reconstructed file

the entire record is available except statement of the accused recorded

under Section 313 Cr.P.C. However, the position as noted supra and

detailed in the judgment about the admissions and denials made by the

accused in their respective statements under Section 313 Cr.P.C. has not

been disputed. The accused in fact had nothing more to add or to

subtract even before this Court. In this view of the matter, their

statements under Section 313 Cr.P.C. not being a part of the record

would not affect the disposal of the appeals on its merits.

7      No evidence was led in defence.

8      On behalf of appellant Harish arguments have been addressed in

detail. Learned Senior Counsel for the appellant has pointed out that the

statement of the victim (PW-1) suffers from inherent discrepancies. In

fact a chart has been placed on record to point out the so-called

discrepancies in the three versions given by PW-1 i.e. her statement

under Section 161 Cr.P.C. (which had formed the basis of the FIR), her

statement recorded under Section 164 Cr.P.C. and her version on oath in

court. It is pointed out that there have been material improvements in all

the three versions. It would also be impossible to believe that Harish

would have known that the victim would come to the roof top at 2.00

a.m. and whereupon the offensive act had taken place. In normal

course, since it was a peak summer month the host would have kept

water for the guest and the story built up by the prosecution of the

accused asking the victim for water is concocted. Gola Banquet Hall

had in fact been booked by PW-2 only for a dinner event; no marriage

was to take place between Harish and the victim. The doctor examined

as PW-17 has in her cross-examination admitted that she had not stated

in her report that the hymen of the victim was ruptured. The medical

evidence also does not support the version of PW-1. To support this

argument reliance has been placed upon (2012) 7 SCC 171 Narender

Kumar Vs. State (NCT of Delhi submission being that where the version

of the prosecution is found to be suffering from infirmities and

inconsistencies, the prosecution was making deliberate improvements on

material points and there also being no injury upon the victim, such an

evidence cannot be relied upon. An adverse inference also has to be

drawn for non-examination of a material witness i.e. Padam Goel, the

brother of the victim. It is pointed out that as per the version of PW-1

and PW-2 it was Padam Goel who had first gone to the room of his

sister where he learnt about the offending act having been committed by

Harish upon his sister. This non-examination creates a dent in the

version of the prosecution. To support this submission reliance has been

placed upon (2008) 11 SCC 153 State of Uttar Pradesh Vs. Punni and

Ors. Submission being that an adverse inference has to be drawn

against the prosecution on this count. The next submission of the

learned Senior Counsel for the appellant is that since all the accused

persons have been acquitted of the offence under Section 406 of the IPC

and if breach of trust qua entrusted property has not been established

against the appellant, the offence under Section 3 and 4 of the said Act

which deals with the giving and the demand of dowry respectively also

cannot be sustained; the appellant is entitled to an acquittal of both the

offence under Section 3 and 4 of the said Act.

9 On behalf of remaining accused i.e. Yogender Aggarwal and

Sumitra Devi, learned counsel for the appellants has highlighted the

same submissions; it being reiterated that once the offence under Section

406 of the IPC is not found proved the necessary corollary would be that

the offence under Section 3 of the said Act also cannot be sustained.

Even on merits, the prosecution has failed to prove its case. Attention

has been drawn to the version of PW-2. Submission being that there

was no evidence of the giving of any dowry, and who had taken the so-

called dowry articles to the house of the accused has also not been

proved. The alternate submission of the learned counsel for the

appellants being that even presuming that an air conditioner and a

washing machine were given it would only be the comfort of the girl; it

would be impossible to imagine that the family of the bridegroom would

derive any benefit from such a giving. Conviction of the accused under

Section 3 of the said Act is accordingly liable to be set aside.

10 Needless to state that these arguments have been countered.

Attention has been drawn to the versions of PW-1, PW-2, PW-3 and

PW-17 as also recovery memos Exs.PW-13/A and PW-13/B.

Submission of the learned public prosecutor being that the oral

testimony of the aforenoted witnesses has been fully corroborative of the

documentary evidence which includes the MLC of the victim as also the

recovery memos Ex.PW-13/A and Ex.PW-13/B evidencing the recovery

effected from the house of Yogender and Sumitra Devi. On no count

does the impugned judgment call for any interference.

11 Arguments have been heard and record has been perused.

12 PW-1 is the star witness of the prosecution. She was the victim.

She had on oath deposed that she was living at the aforenoted

accommodation (Khari Baoli) since her childhood along with her

parents, two brothers and one sister. She was the third sibling in the

family. On 23.6.1997, at about midnight when she along with her

family were watching television, Harish came to their house and

requested her parents to allow him to stay in their house as his vehicle

was not working. He was permitted to stay and was asked to sleep in

the third floor of the house. The second floor comprised of one hall and

two rooms. The entire family used to sleep in the hall as it had an air

conditioner. The accused slept in the guest room on the third floor. At

about 2.00 a.m. PW-1 got up to go to the toilet. The toilet was on the

balcony outside the hall. Harish called her asking for water at the third

floor; when she went upstairs he pulled her inside the room and bolted

the room from inside; he forcibly committed rape upon her. PW-1

raised alarm; her mouth was shut by him. At that point of time PW-1's

brother Padam Goel came to the third floor and knocked on the door.

Harish opened the door and PW-1's brother learnt about the fact that

Harish had committed rape upon her. The rest of the family was

awakened. PW-1 narrated the incident to her parents. Her father PW-2

wanted to call the police but Harish stated that some kind of

arrangement could be worked out and he was ready to marry PW-1.

Accordingly the parents and uncles of Harish as also PW-1's uncle and a

neighbor were called; it was agreed that the matter could be put to rest if

Harish and 'R' were to get married and accordingly the marriage was

fixed for 13.7.1997. On the same day at about 7.00-8.00 a.m PW-2

performed the Tika Ceremony; cash and sweets were given. On

24.6.1997 the father of the accused called her parents to his house. On

25.6.1997 parents of the victim went to the house of the accused where

the family of the accused demanded a washing machine and cash of

Rs.1 lac. The same was given to them. A demand for an air conditioner

was also made which was also met. Engagement ceremony was fixed

for 12.7.1997 and the marriage was fixed for 13.7.1997. PW-2 Ram

Avtar had booked the Gola Banquet Hall for the marriage ceremony.

Sagan ceremony took place. However, on 13.7.1997 Girdhari Lal

(father of Harish) telephoned her house (PW-1) and made an additional

demand of Rs.5 lac which the family of the victim was unable to meet.

The matter could not be settled. Harish refused to perform the marriage.

The invitation cards had been sent and the guests were admittedly

gathered at the Banquet Hall but Harish and his family did not deter

from their demand of Rs.5 lac as an additional dowry. The marriage

could not be performed. Police was accordingly informed.

13 In the lengthy cross-examination of the victim she stuck to her

stand; she reiterated that her house was surrounded by other houses.

She had gone to the toilet when Harish called her from the third floor

and asked her to give him water. The distance between the stairs

leading to the third floor and the toilet was about 10 to 12 paces. She

reiterated that Harish forcibly caught her and pulled her inside the room

and committed rape upon her. PW-1 was confronted with her earlier

statement recorded under Section 164 of the Cr.P.C. (Ex.PW-1/A) and

although in her statement on oath in Court she had stated that her

brother had come to the room when the accused was in the process of

committing sexual intercourse, in this version she had only stated that

when her brother knocked on the door the accused was committing the

offensive act upon her. This is no improvement. In fact in the entire

cross-examination of PW-1 learned senior counsel for the appellant has

not pointed out any such improvement. The chart which has been filed

in Court also shows that the version of PW-1 has been consistent on all

scores i.e. right from the initial statement (which had formed the basis of

the FIR), her version under Section 164 of the Cr.P.C. recorded on

03.09.1997 and thereafter her version on oath in Court which was

almost three years later. Minor discrepancies, if any (not highlighted),

would not in any manner deter the otherwise cogent and coherent

version of PW-1; also noting the fact that the witness had finally entered

the witness box in the year 2000. There was also no reason whatsoever

for PW-1 to have falsely implicated the accused. In fact no such

argument has also been addressed before this Court. It was an admitted

position that up to 1996-1997 Harish and his family were living in the

neighbourhood where PW-1 was living. It had been admitted that both

the families were known to each other. It was in this context that Harish

had requested the family of PW-1 to allow him to stay in the midnight

of 23.6.1997 and accordingly he was permitted to stay there and sleep in

the guest room on the third floor of the house. Version of PW-1 as

already noted supra post permission granted to Harish to sleep in the

guest room is fully credible. PW-1 had the courage to report the matter

to the police; an untoward act had been committed upon her on

23.6.1997 but when Harish and the victim agreed to the perform

marriage ceremony the matter had got allayed. In this intervening

period dowry articles to the best of the ability and capability of the

family of PW-1 had been sent to the house of Harish but the additional

demand of Rs.5 lac could not be met.

14 The testimony of Naresh Kapoor (PW-10) partner of the Gola

Banquet Hall is also fully corroborative of the version of PW-1 which is

to the effect that Ram Avtar (PW-2) father of 'R' had booked the Gola

Banquet Hall for the marriage ceremony of his daughter, the wedding

cards (proved as Ex.PW-2/B and Ex.PW-2/C) also fortify this version.

There is absolutely no reason for a public witness (PW-10) to have

deposed about a fact which was incorrect. In fact the argument of the

appellant that the Gola Banquet Hall had been booked for a dinner is

negatived by the statement of PW-10 who in his cross-examination

categorically stated that his marriage hall could only have been booked

for the purpose of marriage; he denied that the Banquet Hall had been

booked for a dinner event. Counter foil of the advance booking amount

has also been proved as Ex.PW-10/A.

15 PW-2 the father of PW-1 was also fully supportive of the versions

of PW-1 and PW-10. He reiterated that on 23.6.1997 his son had gone

up stairs and on peeping through ventilator he saw Harish and his

daughter inside the room; on knocking the door he learnt of the

offensive act having been committed by Harish upon his daughter. They

were brought down. At the request of Harish that the matter could be

settled, his parents as also his uncles Hukum Chand and Mahesh Kumar

were called; one neighbour was also called. Brothers-in-law of PW-2

Ram Kishore and Ashok Kumar Bansal were also summoned. The

relations of both the sides agreed that the matter could be resolved if

Harish and 'R' were married and the marriage date was accordingly

fixed for 13.7.1997.

16 PW-2 has reiterated that Girdhari Lal had come to their house on

which day PW-2 had given him cash of Rs.1 lac and sweets which was a

pre-marriage 'sagan'. On the demand of Gayatri Devi and Sumitra Devi

a washing machine was also sent to their house and so also air

conditioner. At the time of tika ceremony, a wrist watch, ring, clothes

and Rs.11000/- were given to Harish. Other articles were also sent to

the house of Harish. On 13.7.1997 (date of marriage) Girdhari Lal

telephoned PW-2 stating that unless an additional amount of Rs.5 lac

was given, the marriage would not be performed. This amount could

not be arranged at such a short notice. Harish refused to perform the

marriage. Accordingly, a complaint was filed.

17 PW-2 was subjected to a lengthy cross-examination but he struck

to his stand and reiterated that Girdhari Lal, Harish, Yogender and

Gayatri Devi had demanded Rs.5 lac. He was confronted with his

earlier version but no improvement could be pointed out by the learned

defence counsel.

18 Usha Goel (PW-3) the mother of the victim had also deposed on

the same lines as PW-1 and PW-2. She had stated that on 12.7.1997

Sumitra Devi and Gayatri Devi had come to perform 'sagan' ceremony

at their house, and in the evening male persons of her family went to the

house of Harish to perform Tika ceremony; wrist watch, rings, utensils,

sweets, clothes, gold coins and some cash were also given in the

ceremony. On 13.7.1997, while the family was preparing for the

wedding, a call with additional demand of Rs.5 lac was made by

Girdhari Lal. The demand could not be met and as such a police

complaint was filed. This witness was also subjected to a lengthy cross-

examination. She did not deter.

19 H.C.Rajinder Singh (PW-13) joined the investigation and in the

course of the investigation, vide seizure memos Ex.PW-13/A and

Ex.PW-13/B one A.C., utensils, wrist watch and gold chain were seized

from the house of Yogender and Sumitra Devi which was on 16.7.1997

and documented by the aforenoted exhibits.

20 Offence of rape which was a forcible act committed upon the

victim has been fortified not only by her own cogent and credible

version but also supported by the version of PW-2 and PW-3 who had

stated that Padam Goel their son had gone up stairs and then he learnt

about this forcible act of rape being committed by Harish upon the

victim. One line of argument adopted by learned senior counsel for the

appellant qua this offence is that no such act was committed. This court

is not inclined to believe this argument. No victim of rape would make

a false statement, with no reason whatsoever (there is no defence on this

score) putting a stigma on her own reputation. This was a public

statement which PW-1 had given as admittedly marriage celebrations

were on but the marriage had to be cancelled and it was not only the

immediate family of PW-1 who learnt about the cancellation of marriage

but probably all the guests who were invited for the wedding. The

victim and her parents (PW-2 and PW-3) were brave enough to accost

the accused and his family on this count. Question of false implication

in such a situation especially when another sister of the victim was yet

to get married would not arise. It was not an easy task for PW-1 and her

family to report the matter to the police but this is a clear case where

there was no other option. Testimony of PW-1 was also fortified by the

version of the doctor (PW-17) who had examined her on 13.7.1997.

PW-17 had proved the MLC of the victim as Ex.PW-17/A wherein it

was recorded that her findings were suggestive of sexual intercourse.

In cross-examination PW-17 had admitted that it has not been

specifically mentioned in Ex.PW-17/A that hymen was ruptured but her

finding was otherwise categorical in the MLC that on local examination

of the victim, the findings were suggestive of sexual intercourse. Thus

the medical evidence of the victim was fully corroborative of the oral

version of PW-1. Thus evidence which has been collected, both oral

and documentary, establishes that the offence of rape had been

committed upon PW-1 by Harish.

21 The law on Section 376 of the IPC has been categorized and

reiterated by the courts time and again. Testimony of a victim of such

an offence if found cogent and credible by itself is sufficient to nail the

accused. No other supportive evidence is also required. However, the

courts have to be cautious while examining the testimony of such a

victim. [see (2004) 8 SCC 153 State of Himachal Pradesh Vs. Shree

Kant Shekari]. In the instant case there is nothing whatsoever to suggest

that PW-1 would implicate the accused for a false purpose. No such

suggestion has also been given in this regard. In fact by reporting this

incident it was the honour and reputation of PW-1 which was at stake.

The matter was obviously not reported on 23.6.1997 (date of the

incident) for the reason that the parties had agreed that the matter could

be resolved by the parties marrying one another. This did not in any

manner mean that the act of the accused stood condoned. This was only

to overcome the harrowing situation which had arisen and since both the

families were known to each other for several years having lived in the

same vicinity, and when the parents of the accused and both his uncles

in the presence of their neighbour had agreed that Harish would marry

PW-2, it was agreed that the matter would not be reported to the police.

22 Thus in such a situation, it can no manner be said that there was a

delay in lodging the FIR. The offence under Section 376 of the IPC qua

Harish stood fully proved.

23 Proceedings against Girdhari Lal, father of Harish (since

deceased) have since abated. Apart from Harish, his elder brother

Yogender and his mother Sumitra Devi have also been convicted under

Section 3 of the said Act. All the accused persons had been charged for

the offence under Section 406 of the IPC also but they all stood

acquitted of the said offence.

24 Submission of the learned counsel for appellants Yegender and

Sumitra being that since offence under Section 406 of the IPC was not

proved, the necessary corollary would be that offence under Sections 3

and 4 of the said Act also stands disproved. This submission has to be

examined in the light of the said provisions of law.

25 Section 406 of the IPC necessarily mandates that there must be

criminal intent on the part of the accused to misappropriate the property

which has been entrusted to him. There must be a dishonest intention.

Section 3 of the said Act deals with giving or taking of dowry. Section

4 deals with a demand of dowry. Dowry has been defined in Section 2

of the said Act. 'Dowry' means any property or valuable security given

or agreed to be given either directly or indirectly by one party to a

marriage to the other party at or before marriage or at any time after the

marriage. Thus 'dowry' as defined in Section 2 of the said Act must

have an inextricable nexus with the marriage. [ see (2011) 4 SCC 427

Bachni Devi & Anr Vs. State of Haryana through Secretary, Home

Department]. Section 3(2) presupposes that presents which are given at

the time of marriage without any demand would not come within this

penal provision.

26 It is in this legal background that conviction of the appellants

under Sections 3 and 4 of the said Act has to be examined.

27 Version of the prosecution rests upon two recovery memos

Ex.PW-13/A and Ex.PW-13/B besides the oral version of the witnesses

i.e.PW-1, PW-2 and PW-3 coupled with the members of the

investigating team. What had been recovered from the house of

Yogender and Sumita Devi (brother and mother of Harish) was a Titan

watch, air conditioner, gold chain and a ring. The air conditioner in a

normal course would have been fixed in the room of the bride. Parties

were known to each other. They were of the same 'gotra'. PW-2 was a

shopkeeper having his shop at Khari Baoli. He was a man of means. It

can be presumed that even in a normal course an air conditioner and a

washing machine and some gold articles like a gold chain or a ring

would have been given to his daughter at the time of her marriage.

These would only be to add to her comfort and as per tradition at the

time of a Hindu marriage, presents and articles are given by the parents

of the bride to the bridegroom and his family. Keeping in view the

financial status of PW-2 it cannot be said that these articles which were

received by Yogender and Sumitra Devi (from whom they were

recovered) amounted to a taking of dowry. The offence under Section 3

of the said Act qua all the appellants has not been proved; they are

entitled to benefit of doubt and a consequent acquittal. Accordingly,

they are all acquitted under Section 3 of the said Act.

28 Qua the role attributed to Harish for a demand of dowry as has

been postulated under Section 4 of the said Act, this Court finds that

there is sufficient material against him qua this conviction. In fact the

entire version of the prosecution rests upon this demand. It is this

demand of Rs.5 lac which was made by Girdhari Lal (since deceased)

that was followed up by his son Harish which had led to the break in the

marriage as it could not be met. If this demand was not reiterated by

Harish the marriage would have gone through. The demand of Rs.5 lac

initially raised by Girdhari Lal was followed up by Harish. He was the

bridegroom who had to perform the marriage and it has been established

that the marriage could not be performed by Harish as this additional

demand of Rs.5 lac was not met. Even presuming that Harish had not

made the demand directly to the parents of the victim but the telephone

call on 13.7.1997 was made by him through his family; the demand was

nevertheless made indirectly to the parents of the bridge (which in this

case was made by Harish through his father Girdhari Lal). The offence

under Section 4 of the Said Act is made out. In this background

conviction of Harish under Section 4 of the Said Act cannot be faulted

with.

29 This Court notes that the Trial Judge while sentencing the

appellant Harish for his conviction under Section 376 of the IPC

(unamended) had given a sentence lesser than the minimum i.e. sentence

the sentence of 5 years. The power of the Court to give a sentence

lesser than the minimum is contained in the proviso to the said Section.

This power has to be exercised on sound judicial principles and only

when a case is made out. No reason has been spelt out by the Trial

Court as to why the sentence lesser than the minimum should have been

awarded to convict Harish for having committed the offence under

Section 376 of the IPC (unamended). Once a conviction under Section

376 of the IPC stood proved it was the obligation of the Court to have

given the minimum sentence, unless for reasons to be spelt out, the

Court was exercising its discretion to reduce the minimum. As noted

supra no such reason has been given. However, be that at it may, since

the State has not filed any appeal against the sentence and it had also not

chosen to address any argument qua this issue, this Court while

maintaining the sentence of 5 years RI for the conviction of Harish

under Section 376 of the IPC (unamended) also thinks it fit not to

modify the sentence which has been imposed upon him under Section 4

of the said Act which is RI 2 years. Sentences were to run concurrently.

Benefit of Section 428 of the Cr.P.C. is also granted to the convict.

30 Appellant Harish be taken into custody to serve the remaining

sentence.

31     Appeals are disposed of in the above terms.



                                        INDERMEET KAUR, J

AUGUST 27, 2014
ndn