Amar Pal Singh vs State
2015 Latest Caselaw 2529 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 RESERVED ON : MARCH 12, 2015
                                 DECIDED ON : MARCH 25, 2015


+                     CRL.A. 803/2005 & Crl.M.A.10115/2005



       AMAR PAL SINGH
                                                             ..... Appellant
                      Through : Mr.Raj Pal Singh with Mr.Sauraj Singh
                               and Ms.Meenakshi, Advocates.

                            versus

       STATE
                                                           ..... Respondent
                      Through : Ms.Kusum Dhalla, APP.


        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The present appeal is directed against a judgment dated

11.08.2005 in Sessions Case No.10/05 arising out of FIR No.582/99

registered at Police Station Timarpur by which the appellant-Amar Pal

Singh was convicted under Section 452/376/506-II IPC. By an order

dated 20.08.2005 he was sentenced to undergo RI for two years with fine

`1,000/- under Section 452 IPC; RI for ten years with fine `1,000/- under

Section 376 IPC and RI for two years with fine `1,000/- under Section

506-II IPC. The substantive sentences were to operate concurrently.

2. Briefly stated the prosecution case as projected in the charge-

sheet was that on 01.12.99 at about 2:30/2:45 p.m. the appellant

committed rape upon prosecutrix 'X' (assumed name), aged 14 years, in

her house No.1466, Street Peeli Kothi, Nathu Colony, Nathupura, Delhi

after putting her in fear. The police machinery was set in motion when

the incident was reported and DD No.14 (Ex.PW-13/A) came into

existence at Police Post Burari, Police Station Timarpur at 03:12 p.m.

The investigation was assigned to HC Devender who with Ct.Satish

Kumar went to the spot. The Investigating Officer lodged First

Information Report after recording victim's statement (Ex.PW-1/A); she

was medically examined. The accused was arrested and medically

examined. Statements of witnesses conversant with facts were recorded.

Exhibits collected during investigation were sent to Forensic Science

Laboratory for examination. After completion of investigation, a charge-

sheet was filed against the appellant in the court. The prosecution

examined 14 witnesses to prove its case. In 313 Cr.P.C. statement

denying the allegations, the appellant pleaded false implication. No

evidence in defence was produced. The trial resulted in his conviction as

aforesaid. Feeling aggrieved and dissatisfied, the instant appeal has been

preferred.

3. I have heard the learned counsel for the parties and have

examined the file. During the course of arguments, on instructions, the

appellant's counsel stated at Bar that the appellant has opted not to

challenge the findings on conviction recorded by the trial court. He,

however, prayed to take lenient view as the appellant has undergone

substantial period of substantive sentence awarded to him. Learned APP

has no objection to consider the mitigating circumstances.

4. The appellant has opted to give up challenge to the findings

recorded by the trial court on conviction. The trial court believed the

victim's version and convicted the appellant for committing rape upon her

after putting her in fear. On perusal of the evidence produced by the

prosecution, the reasoning given by the trial court to convict the appellant

under Section 376, however, cannot be sustained. From the statement of

the proseuctrix and other materials on record, it can safely be inferred that

physical relations between the two were with victim's consent. Since the

prosecutrix was below 16 years of age, her consent to have physical

relations was inconsequential. On that aspect, conviction under Section

376 is to be maintained.

5. It has come on record that the appellant and prosecutrix were

acquainted with each other prior to the incident. He lived in her

neighbourhood. On the day of incident 'X' returned from her school at

around 1:40 p.m. After her mother went to the house of Mr.Bagraj, their

neighbour, 'X' bolted the room from inside. The appellant allegedly

arrived in the house from the roof and physical relations were established.

No hue or cry was raised by the prosecutrix at that time. It so happened

that when the prosecutrix and the appellant were in compromising

position, 'X's mother arrived and knocked at the door. Before 'X' could

open the door, the appellant went away from the spot through roof. The

prosecutrix did not open the door quickly and provided an escape route to

the appellant. She was taken for medical examination and no external

visible injuries were found on her body. Had there been forcible rape,

there was every possibility of the prosecutrix to have sustained struggle

marks. In her cross-examination 'X' denied to have ever gone to the shop

of any photographer. However, when confronted with photograph

(Ex.PW-1/DA) along with the appellant, she admitted that it was taken in

a shop of a photographer at Burari. She further revealed that the appellant

had taken her from the bus stand next to her school bus stop where she

was standing for taking bus. She stated that the appellant had taken her

under threat. However, admittedly no complaint was made by her to her

family members about this. The appellant examined Ashok Kumar-

photographer in defence as DW-1. He deposed that the prosecutrix had

visited his shop along with the appellant. She did not complain about the

conduct and behaviour of the accused. From the very inception, the

appellant's case is that the prosecutrix wanted to marry him and her

parents did not agree being of different castes. The prosecutrix was aged

below 16 years on the date of incident as her date of birth as recorded in

school certificate was 25.05.1985. This date of birth has remained

unchallenged.

6. Regarding sentence, nominal roll reveals that before the

appellant was enlarged on bail on 11.10.2007, he had undergone four

years, five months and eleven days in custody besides remission for eight

months and seventeen days as on 05.10.2007. He was not involved in any

other criminal case. His overall conduct in jail was satisfactory. He was

not a previous convict. Sentence order records that the appellant was to

support his family and was a very poor person. The appellant has placed

on record various documents to show that after enlargement on bail, he

has attained various educational qualifications. He got married on

27.02.2009 and his wife is on family way and the due date for delivery is

11.09.2015. Since release, he is gainfully employed in various institutions.

Finally he joined Global Social Compliance Corporation in October, 2013

and is working there till date. He has also completed his B.A.

qualification and is to appear for M.A. Part II examination.

7. Considering these mitigating circumstances, no useful

purpose will be served to send the appellant in custody again. He was

aged about 18/19 years on the day of incident. I am of the view that there

exist special and adequate reasons to award sentence less than seven years

as mandated under Section 376 IPC. In Sanjay vs. State 2014 (1)

C.C.Cases (HC) 326, this Court held:

"The legislature in its wisdom made a provision for awarding a sentence of less than seven years when there are special and adequate reasons for the same. I have before me the prosecutrix's testimony. It goes without saying that the prosecutrix merrily proceeded with the Appellant most willingly. She travelled with him in a bus and then in a train to Luchnow. The prosecutrix was brought back to Delhi by the Appellant himself where the Appellant and the prosectrix were apprehended at New Delhi Railway Station by the police. Thus, although the Appellant does not want to contest the appeal on merits, it is borne out from the record that it was a case of consensual intercourse with the prosecutrix. While awarding punishment, the Court has to take into

consideration the mitigating and aggravating circumstances. The prosecutrix was aged 15 years and eight months and she was incapable of giing the consent eight months and she was incapable of giving the consent for sexual intercourse. I have seen numerous cases where the girls sometimes less than 16 years of age take a lead in eloping with a boy, enters into a marriage with the boy and have sexual intercourse with him. Such a predicament was noticed by this Court in several cases including in two judgments passed by the Division Benches of this Court, namely, Manish Singh v.State Govt. of NCT & Ors, AIR 2006 Delhi 37 and Bholu Khan v.State of NCT of Delhi & Ors. (W.P.(Crl.)1442/2012 dt.01.02.2013."

Considering the age of the prosecutrix and the facts narrated above, in my view, it is a fit case where sentence less than the minimum should be awarded. Similar view was taken and sentence less than minimum was awarded by a learned Single Judge of this Court in Brij Pal v.State (Crl.Appeal No.278 of 2000) decided on May 31, 2011. I accordingly, sentence the Appellant to undergo RI for four years and to pay a fine of Rs.2,500/- for each of the offences under Sections 366 and 376 IPC, and in default of payment of fine, the Appellant shall undergo SI for one month each. Both the substantive sentences shall run concurrently."

8. In the light of the above discussion, while maintaining

conviction, the sentence order is modified and the period already

undergone by the appellant in this case is taken as substantive sentence.

Of course, he will deposit the fine (if any) and for non-payment of it shall

undergo default sentence for ten days. Copy of this order be sent to the

concerned Jail Superintendent for information and necessary action. Trial

court record be sent back along with a copy of this order.

9. All pending application (s) also stand disposed of.

(S.P.GARG) JUDGE MARCH 25, 2015 sa