Ajeet Singh Katiyar vs State
2014 Latest Caselaw 5564 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Date of Decision : 10th November, 2014
+     CRL.A. 898/2010

      AJEET SINGH KATIYAR                                     ..... Appellant
                    Through:             Mr. Joginder Tuli, Advocate

                                     versus

      STATE                                                  ..... Respondent
                          Through:       Ms. Rajdipa Behura, APP for State
                                         with ASI Prabha Karan, PS Delhi
                                         Cantt.
    CORAM:
    HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J. (Oral)

1. The present appeal has been preferred by the Appellant Ajeet Singh Katiyar challenging the judgment dated 08.12.2009 and order on sentence dated 10.12.2009 passed by the learned Addl. Sessions Judge, Dwarka Courts in Sessions Case No.24/2008 whereby he has been convicted and sentenced as under:-

 Under Section           Sentence              Fine            In default
 376(2)(g) IPC         RI for 14 years        10,000/-       SI for 2 years
  328/34 IPC           RI for 5 years         5,000/-       SI for 6 months
  366/34 IPC           RI for 7 years         5,000/-       SI for 6 months
 506 Part-I IPC         RI for 1 year             -                 -

All the sentences were ordered to be run concurrently.

2. In brief, the case of the Prosecution is that the Prosecutrix alongwtih her friend was residing at Satya Niketan. On the night intervening 7/8.05.2005 at about 2.30 am, they were going on foot via an unused road at Dhaula Kuan to have Parantha. At that time, one Santro Car slowed down and the occupants of the car made comments on them. Two persons came

out of the said car and tried to lift the Prosecutrix as well as her friend. Both the persons could only lift the Prosecutrix, however, her friend could not be lifted as she resisted. Thereafter, both the persons put the complainant into the car and fled from there towards NH-8. The said Santro Car was chased by a person on motorcycle but the occupants of the car managed to escape towards Gurgaon Road.

3. It is further the case of prosecution that the Prosecutrix was made to consume some intoxicated substance in the car. One of the occupants of the car was having a gun and the Prosecutrix was threatened not to raise alarm. Thereafter, the Prosecutrix was raped in the moving car by the four occupants by taking turns and two of them raped her twice. Thereafter the Prosecutrix was shifted to one Zen Car and she was dropped by on the opposite side of Gurudwara, Nanak Pura. From there she reached Gurudwara of her own and narrated the incident to the persons present there. Her friend was also informed. Matter was also reported to the police. Police reached there and statement of Prosecutrix was recorded. Prosecutrix was also got medically examined.

4. During investigation, only the Appellant was arrested and sent to face trial.

5. The Appellant was charged committing the offences punishable under Sections 120-B IPC, under Section 328/366/376(2)(g)/506 IPC to which he pleaded not guilty and claimed trial.

6. The prosecution examined 31 witnesses in all in support of its case. The Appellant was also examined under Section 313 CrPC to enable him to explain the incriminating evidence appearing against him.

7. After completion of trial, on the basis of the evidence adduced by the prosecution, the learned Addl. Session Judge convicted the Appellant for

committing the offence punishable under Sections 376(2)(g) IPC and under Section 366/328/506-I/34 IPC and sentenced in the manner stated above.

8. During the hearing of the appeal, learned counsel for the Appellant submits that the Appellant was arrested in this case on the basis of sketches prepared but the sketches were not annexed with the charge-sheet. Further despite various requests, no DNA test was conducted which would have given a chance to the Appellant to prove his innocence. He further submits that though four persons allegedly committed rape on the Prosecutrix, except the Appellant, no other accused was arrested in this case. However, Mr. Joginder Tuli, learned counsel for the Appellant submits that he is under instruction not to challenge the verdict of learned ASJ holding him guilty Section under 376(2)(g) IPC and under Sections 366/328/506-I/34 IPC but limiting his submissions only to the prayer for taking a lenient view on the quantum of sentence.

9. Mr. Joginder Tuli, Advocate submits that at the time of occurrence the Appellant was a young unmarried man. He has been in custody for about a decade and had no previous involvement prior to his arrest in this case. He further submits that for committing an offence of gang rape, the minimum sentence is 10 years which can be extended to life. In the instant case the Appellant had been sentenced to undergo RI for 14 years for committing the offence punishable under Section 376 (2)(g) IPC despite the fact that except rape, no injury was attributed to the Appellant. He further submits that it is Prosecution's own case that the victim was dropped at the place where she desired to be dropped and at that time she was not in injured condition. While referring to order on sentence, learned counsel for the Appellant contends that learned ASJ has not given any reason as to why he was sentencing the Appellant to undergo imprisonment for 14 years though the

minimum sentence prescribed for committing the offence under Section 376(2)(g) IPC is 10 years. Learned counsel for the Appellant submits that the Appellant is limiting his prayer only to the extent that in the given facts, substantive sentence awarded to him under Section 376 (2)(g) IPC may be reduced to the period as deemed appropriate by the Court.

10. Learned APP for the State submits that the Appellant does not deserve any leniency. She has drawn the attention of this Court that in this case to the night intervening of 7th/8th May, 2005 at 2.30 am when the victim alongwith her friend was going to have food. They preferred to pass through an unused road to avoid vehicular traffic in the night. The victim was pulled inside a Santro Car which slowed down near them. Learned APP for the State submits that since walking on the roads in Delhi is no longer safe especially for women, offenders like the Appellant before this Court, deserve to be given maximum possible sentence so that it can have some deterrent effect.

11. I have considered the submissions made on behalf of the Appellant and the State on the point of quantum of sentence. Learned ASJ while sentencing the appellant for 14 years for the offence punishable under Section 376(2)(g) IPC has recorded the submission of the Appellant in para no. 2 and that of State in para no.3 of the order on sentence. The submissions made on behalf of the Appellant were to the following effect :

(i) He belonged to a very poor family having old parents and mentally ill brother;

(ii)    He was unmarried and young in age.
(iii)   His parents were dependent upon him.
(iv)    None of other offenders has been arrested or even declared
proclaimed offender.

12. The submissions made on behalf of the State were that :-

(i) Maximum punishment should be awarded as within a span of two hours the victim was raped six times i.e. once by the appellant and five times in his presence.

(ii) Status of the accused is not relevant while awarding sentence rather the state of the victim has to be considered as her entire life and carrier has been ruined.

13. After considering the submissions, the learned Trial Court, apart from sentencing the Appellant under Sections 366/328/506-I/34 IPC, also sentenced him to undergo RI for 14 years with fine of Rs.10,000/- under Section 376(2)(g) IPC for the following reasons :-

"4. Heard. Undoubtedly, a committal of gang rape is a beastly act and rape itself rather, take out the life from the life of victim. The scars of rape always remains engraved in her mind and she cannot overcome her throughout her life. It cannot also be forgotten that women are generally weak and committal of rape on a meek victim is the gravest of offences.

5. The punishment prescribed for an offence under Section 376(2)(g) IPC is minimum of ten years with fine and can also be for life. The punishment prescribed for offence under Section 376 IPC is for a maximum period of 10 years with fine. Similar is the punishable prescribed under Section 328 IPC, and the maximum punishment prescribed for the offence under Section 506 Part-I IPC is two years.

6. Considering the entire facts and circumstances of the case and the arguments advanced by all concerned, the accused is sentence to RI for fourteen years and a fine of Rs. 10,000/-, in default SI for two years, for the offence punishable under Section 376(2)(g) IPC, RI for five years for offence punishable under Section 328 read with Section 34 IPC and a fine of Rs. 5,000/-, in default SI for six months. He is sentenced to RI for seven years and a fine of Rs. 5,000/-, in default SI for six months under Section 366 read with Section 34 IPC and RI for one year under Section 506 Part-I IPC.

7. All the sentences will run concurrently. Benefit of Section428 Cr.P.C.is to be extended to the accused, who was arrested on 13.5.05. Copy of the judgment and order on sentence be supplied to the accused."

14. The factors to be considered by the Court while sentencing a convict in a case of gangrape, have been laid down by the Apex Court in Shimbhu and Anr. Vs. State of Haryana AIR 2014 SC 739. While considering the affidavit filed by the Prosecutrix and the sentencing policy, the Hon'ble Supreme Court has observed as under:-

"8. We carefully perused the contents of the said affidavit. It contains two pages and the deponent has signed in Hindi, that too only on the last page. Nothing was brought to the notice before any forum. In these circumstances, let us consider the relevant provision, as it stood on the date of the incident, and various decisions of this Court. Sentencing Policy under Section 376(2)(g) of IPC.

9. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed."

15. Reverting to the facts of the present case and the submissions made by the learned counsel for the Appellant, I find that while sentencing the Appellant to 14 years imprisonment for committing the offence punishable under Section 376(2)(g) IPC, learned trial Court did not specify any act of

cruelty attributed to the Appellant which required him to be awarded a sentence of 14 years. After examining the case of the prosecution in the light of principles laid down in the case of Shimbhu and Anr. Vs. State of Haryana(supra) and the submissions made on behalf of Appellant as well as the State, I am of the view that the sentence awarded to the Appellant is on the higher side.

16. Accordingly, while maintaining the conviction of the Appellant for committing the offence punishable under Sections 376(2)(g) IPC and 366/328/506-I/34 IPC, the substantive sentence awarded to him for committing the offence punishable under Section 376(2)(g) IPC is reduced from 14 years to 12 years, however the sentence awarded to him under Sections 366/328/506-I/34 IPC shall remain the same.

17. CRL.A. No.898/2010 stands allowed in the above terms. The Appellant, if not wanted in any other case, be released after undergoing the above sentences.

18. Trial Court Record be sent back along with a copy of this order. A copy of this order be also sent to the Appellant as well as to the Jail Superintendent concerned for information and necessary compliance.

Dasti, as well.

PRATIBHA RANI, J NOVEMBER 10, 2014 'pg'