Delhi High Court
Sanjay vs State on 20 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 600/2000
Judgment reserved on : 31st January, 2017
Date of decision : 20th February, 2017
SANJAY ..... Appellant
Through: Mr.M.L.Yadav, Adv.
versus
STATE ..... Respondent
Through: Ms.Aashaa Tiwari, Addl. P.P. for the
State.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. This judgment shall dispose of Criminal Appeal No.600/2000 filed on
30.09.2000, whereby the appellant Sanjay S/o Veer Singh has assailed the
impugned judgment dated 19.09.2000 of the learned Additional Sessions Judge
(ASJ) Shahdara, in State Case 78/99 in FIR No. 153/99, PS Bhajanpura
whereby the appellant was convicted for the commission of rape on the
prosecutrix as defined under Section 375 of the Indian Penal Code, 1860
(hereinafter referred to as "IPC") and was convicted thereunder. The appellant
has also assailed the impugned order on sentence dated 20.09.2000 in the said
case whereby he was sentenced to undergo imprisonment for life and was held
liable to pay a fine of Rs.5000/- and in default of the payment of the fine to
undergo further simple imprisonment for six months with the direction that he
would be entitled to the benefit of the period of the detention already undergone
being set off under Section 428 of the Criminal Code of Procedure, 1973
(hereinafter referred to as Cr.P.C.) both during trial, investigation and enquiry.
2. Notice of the appeal was issued to the State. The trial Court record has
been requisitioned, received and perused. Vide order dated 11.12.2006 of this
Court the sentence of imprisonment of the appellant has been suspended as per
the condition imposed thereby of furnishing a personal bond in the sum of
Rs.10,000/- with two sureties of the like amount. As per the nominal roll,
received from the Superintendent Jail-1, Tihar, New Delhi, the appellant had
undergone a period of 7 years, 7 months and 27 days of incarceration till his
release on 13.12.2006 on bail.
3. Arguments were addressed on behalf of the learned counsel for the
appellant, Mr.M.L.Yadav, and on behalf of the State by the learned Addl. Public
Prosecutor, Ms.Aashaa Tiwari,.
PROSECUTION VERSION
4. The prosecution version set forth through the charge-sheet instituted on
24.06.99 before the court of the Metropolitan Magistrate, which was vide order
dated 13.08.1999 committed to the Court of Sessions, is to the effect that on
22.03.1999 at about 10:25 AM at House No.235 Khumra Mohalla, Ghonda,
Delhi within the jurisdiction of PS Bhajanpura, the accused/the appellant herein
had committed rape on the prosecutrix (AB- pseudo name ) and committed an
offence punishable under Section 376 of the IPC, 1860 in relation to which, the
charge of allegations was framed on 16.09.1999 to which the accused/the
appellant herein, pleaded not guilty and claimed trial. The prosecution version
set forth through Ex. PW-2/B the complaint, made by the mother (CD- pseudo-
nym) of the prosecutrix („AB‟ hereafter), is to the effect that her daughter, the
prosecutrix-AB was born on 07.09.1983 and since birth was unable to speak and
was mentally retarded and that on 22.03.1999 at about 10:00 AM when the
mother of the prosecutrix-AB was unable to find the prosecutrix-AB at home,
she began looking for her and whilst searching for her, CD i.e. the mother of the
prosecutrix reached the house of her brother-in-law (Devar- i.e. her husband‟s
younger brother) and she heard the noise of a scuffle coming from the upper
room and thus she went to the upper room and saw that the doors of the room
were shut which she opened and saw the accused/the appellant herein Sanjay
S/o Veer Singh i.e. her brother-in-law‟s son lying on AB, her daughter
prosecutrix and doing „galat kaam‟ i.e. a wrong act and that she also saw the
prosecutrix trying to save herself whereupon she, CD, the motherof the
prosecutrix (AB) started shouting loudly on which Subhash Chand S/o Dal
Chand who also was the resident of the same area of Purani Abadi, Khumra
Mohalla, Ghonda came up and apprehended Sanjay, the accused/the appellant
herein who was trying to abscond and he also telephoned the police. The
complainant (CD) i.e. the mother of the prosecutrix complained further that the
accused/the appellant herein had committed „galat kaam‟ i.e. rape of the
prosecutrix without her consent.
5. On the basis of the telephonic call made by Subhash Chand S/o Dal
Chand, DD No. 12A is indicated to have been registered at 11:50 AM at PS
Bhajanpura on 22.03.1999 on receipt of the information from the wireless
operator of commission of rape on an unknown girl at House No. 235, Khumra
Mohalla, Ghonda and that the police be sent whereafter SI Jitender Singh
alongwith Ct. Ved Prakash No.1164 North East and W/Ct. Amrik Kaur No.
1553 North East went to the spot.
6. As per Ex.PW-10/A, the endorsement, made by the IO SI Jitender Singh
on the basis of the statement of the complainant (CD) i.e the mother of the
prosecutrix, he sent the rukka through Ct.Ved Prakash to PS Bhajanpura for the
registration of the FIR, which as per Ex.PW-6/C, the endorsement made by the
Duty Officer HC Madhvi, is indicated to have been registered vide DD No.
12A at 11:50 AM. As per the charge-sheet the IO got the medical examination
of both, the prosecutrix and the accused/the appellant herein conducted and
obtained their MLCs No. A-1041/99 and B-1030/99 respectively. The IO SI
Jitender Singh , as per his testimony on examination as PW-10 has also testified
to the arrest of the accused/the appellant herein vide memo Ex.PW-10/B and to
having conducted his interrogation and to the recording of the disclosure
statement of the accused/the appellant herein which is Ex.PW-2/C and having
prepared the pointing out memo Ex.PW-2/D on the pointing of PW-2, the
complainant. The IO also testified to having given intimation regarding the
arrest of the accused at his house vide memo Ex. PW-10/C and to having
recorded the statement of other witnesses and having deposited the case
property with the MHC(M) on his return to the PS. The exhibits i.e one
Kameez and Salwar (i.e. clothes of the prosecutrix) Ex.P1 and P2 respectively
and the vaginal swab are indicated to have been handed over by the doctors at
the GTB hospital to HC Rajender in a sealed condition along with the slide and
sample seal along with the blood sample of the accused/the appellant herein and
semen sample of the accused/the appellant herein which were seized by the IO
vide seizure memo Ex.PW-2/F. The clothes of the accused/the appellant herein
i.e. Pant, Shirt, underwear Ex.P-3,4 and 5 are indicated to have been seized by
the IO vide seizure memo Ex.PW-4/A and were sealed with the seal of „JKS‟
and all the exhibits were stated to have been sent by the IO on 16.06.1999 to the
CFSL, Calcutta through Ct. Brij Pal in relation to which the CFSL result is
Ex.PW-10/B.
7. During the course of investigation, the statement of the complainant (CD)
i.e. mother of the prosecutrix and of Subhash Chand (PW-5) is also indicated
to have been recorded by the IO.
8. The forensic examination result i.e. CFSL/EE/99/DEL-290 dated
03.08.1999 on the record indicates presence of human semen on Ex.1(A)
(Kameez) with reddish brown stains and starchy whitish stains and Ex.1(B) the
Salwar, also tested positive for human semen and was found having reddish
brown stains and starchy whitish stains. Blood of the group 'AB' is indicated to
have been found as per the Serological Section Biology Division report dated
06.09.1999 on the kameez, salwar i.e. clothes of the prosecutrix and the cotton
swab i.e. control blood sample and also cloth cutting i.e. control semen sample
and also on the shirt cuttings, all of human origin. The report dated 06.09.1999
of the CFSL, Calcutta was prepared by the Senior Scientific Officer of the
CFSL, and thus in terms of Section 293 of the Cr.P.C. 1973, is per se admissible
in evidence. Furthermore, PW-11 Mrs.G. Bhattacharya, the Junior Scientific
Officer, CFSL, Calcutta through her unchallenged testimony proved the report
Ex.PW-11/A and Dr.I. Haque, PW-12 Senior Scientific Officer, CFSL,
Calcutta through his unchallenged testimony also proved the report of the
Serological Divison/Biological Division Ex.PW-10/D.
9. The MLC of the accused/the appellant herein, Ex.PW-1/A on the record
indicated that he was 23 years of age on the date of the commission of offence
i.e. 22.03.1999. The MLC of the accused/the appellant herein, also indicates
that the pant and underwear worn by the accused/the appellant herein, and his
blood group sample were taken and handed over by the doctor to the IO. The
said MLC Ex.PW-1/A prepared by the Dr. T.R. Ramtek, Chief Medical
Officer (CMO), GTB hospital, examined as PW-1 has not been assailed by
cross-examination on behalf of the accused/the appellant herein.
10. The MLC of the prosecutrix (AB), Ex.PW-3/A dated 22.03.1999
indicated the age of the prosecutrix to be 16 years and showed her hymen
to be torn. The MLC Ex. PW-3/A prepared by PW-3 Dr. Sandhya Gupta,
Senior Resident, GTB Hospital also showed that the under-clothing of the
prosecutrix was stained with blood; that the prosecutrix was mentally
retarded, deaf and dumb since birth and as per the testimony of PW-3 and
as per the MLC Ex.PW-3/A, she was conscious with altered behaviour and
she was bleeding from the vagina after the act. PW-3 Dr.Sandhya Gupta
through her testimony has also testified to the effect that she had found the
hymen of the patient to be freshly torn and that the patient did not allow
internal examination and that the vaginal swab was taken, sealed and
handed over to the constable for examination and under-clothing stained
with blood were sealed and handed over the constable. On being cross-
examined on behalf of the accused/the appellant herein, Dr.Sandhya Gupta
who examined the prosecutrix, stated that she had examined the patient i.e.
prosecutrix immediately without loss of time when she had reached her for
medical examination and she further deposed that she has found fresh
blood and the hymen was torn. Though this witness stated that blood on
the under-clothing could also be of the menstruation cycle, on being cross-
examined by the learned APP for the State, Dr.Sandhya Gupta PW-3
testified to the effect that though it was true that blood on the under-
clothing could be because of menstruation cycle but in this case there was a
freshly torn hymen and there was a history of sexual assault and thus in
her opinion in all probabilities, blood on the under-clothing of the patient
was on account of freshly torn hymen in relation to which aspect there was
no cross-examination conducted on behalf of the accused/the appellant
herein despite opportunity granted.
11. In support of the prosecution version set forth in the charge-sheet, the
State examined 12 prosecution witnesses.
PLEA OF DEFENCE
12. The accused/the appellant herein led no evidence in defence but admitted
that he was the son of the real brother-in-law (Devar) of the complainant but
claimed innocence and denied the commission of any offence of rape, though he
admitted that he was medically examined. The accused/the appellant herein
further claimed that he had been falsely implicated due to enmity over property
between him and father of the prosecutrix and stated that the prosecution
witnesses had testified falsely and were interested witnesses.
PROSECUTION EVIDENCE
13. The complainant (CD), the mother of the prosecutrix, categorically
testified to the effect that the prosecutrix was born on 07.03.1983 and was
mentally retarded from birth and since birth had been unable to speak, unable to
hear and unable to understand anything despite regular treatment since birth.
14. The testimony of the complainant PW-2 (CD) is categorically to the
effect that on 22.03.1999 at about 9:00AM she was cooking at her house and
after she had finished cooking at about 10:00 AM she found that her daughter
was not at the house and she searched for her daughter everywhere in the
mohalla and in the process of searching her, she went to the adjacent house of
her brother-in-law (Devar) and she reached the first floor of that house where
she heard the noise of a scuffle (hathapai) and she pushed the door and the door
opened and she saw accused/the appellant herein, son of her brother-in-law
(Devar‟s son), whom she also identified as being present during trial, having
laid her daughter (the prosecutrix) down on the floor and she also saw him
committing rape on her. The complainant (CD) PW-2 also testified
categorically to the effect that her daughter was making noise and was crying
and was screaming and there was blood on the floor which was flowing and
there were spots of blood on the wall and on seeing this she started making a
loud noise and came down and on hearing her sound, another brother-in-law‟s
son (Devar‟s son) Subhash Chand S/o Dal Chand came and apprehended
Sanjay, accused/the appellant herein who was trying to run down and thereafter
the police came to the spot and made inquiries from her and she had told the
police everything and had signed her statement Ex.PW-2/A, whereafter she
testified that the accused/the appellant herein, was also arrested and her
daughter was taken to the GTB hospital where she was medically examined and
her clothes had also been taken by the doctor and seized by the police. In her
testimony PW-2, the complainant (CD), the mother of the prosecutrix identified
the clothes of her daughter Ex.P1 and P2.
15. PW-5 Subhash Chand S/o Dal Chand testified to the effect, that on
22.03.1999 at about 10.30 AM he was passing by in front of House No. 235,
Khumra Mohalla, Ghonda, Delhi when he heard the noise of a lady coming
from upstairs which on being questioned as to what kind of sound it was, he
clarified to the effect that the sound was of „Pakro pakro‟ and on hearing the
sound he went up to the first floor and he saw the complainant, the mother of
the prosecutrix trying to surround the accused/the appellant herein and the
accused/the appellant herein was trying to run away and thus he- PW-5 Sh.
Subhash Chand had apprehended Sanjay and then the complainant (CD) i.e.
the mother of the prosecutrix informed Subhash Chand that the accused/the
appellant herein had committed rape on the prosecutrix (AB). As per the
testimony of this witness he went inside and saw that the girl (the prosecutrix)
was lying on the floor and her clothes were on the floor which was blood
stained, and that he PW-5 brought the accused/the appellant herein by holding
him with his hand down and informed the police and the police came to the spot
and thereafter he, - i.e. PW-5 had handed over the accused/the appellant herein
to the police, who then conducted the investigation and also recorded his
statement. This witness further categorically stated that the complainant (CD)
was the real Aunt (Chachi) of the accused/the appellant herein and stated that
the prosecutrix cannot speak and cannot understand anything and that she was
disabled, both physically and mentally. He also stated that they all i.e. he and
the accused/the appellant herein and the prosecutrix and the complainant, were
residents of the same village. On being cross-examined on behalf of the
accused/the appellant herein, this witness stated that he knew the father of the
prosecutrix since childhood though he was not his friend as there was a large
age difference between him and the father of the prosecutrix (PW-2, the
mother of the prosecutrix, as per her testimony is indicated to have been
aged 43 years on the date of her testimony recorded on 30.09.1999 and
Subhash Chand examined as PW-5 is indicated to be aged 36 years on the
date of his testimony recorded on 25.10.1999 making this statement of PW-
5 that there was a age gap between the father of the prosecutrix and
himself i.e. PW-5 and thus there was no scope for friendship between them,
- wholly plausible).
16. The cross-examination of PW-5 is further to the effect, that when he had
gone up to that house from where he had heard the noise coming, he found the
complainant i.e. mother of the prosecutrix at the door and she had stopped the
accused/the appellant herein who was within the room. The cross-examination
of PW-5 is categorical to the effect that when he reached up, he found the
clothes of the prosecutrix open and dishevelled and he also saw blood on the
floor where the prosecutrix was lying and also saw stains on the clothes of the
prosecutrix. He stated that he did not see any blood stains on the wall of that
room. He stated that the police reached the spot after about one hour of his
having telephoned the police. The witness categorically denied that he had
testified falsely being a friend of the father of the prosecutrix. He also stated
that he was at the hospital where the accused and the prosecutrix had been
taken, for about 1½ hour.
17. The testimony of PW-4 HC Amrik Kaur, who went to the spot along
with the IO and Ct. Ved Prakash corroborated the factum of the prosecutrix
being unable to speak and to production of the accused by Subhash Chand-
PW-5 before the police and to his arrest and to the seizure of the clothes of the
prosecutrix and the accused by the IO, after their medical examination was
conducted at the hospital.
18. PW-6 put forth in the witness box by the State, was HC Madhvi, the
Duty Officer at PS Bhajanpura, who testified to having recorded the DD No. 12
A at 11:50 AM, copy of which was exhibited as Ex.PW-6/A and who testified
to having handed over the copy of the said DD entry to SI Jitender Singh and to
having registered the FIR No. 153/99, PS Bhajanpura on receipt of the rukka
brought by Ct. Ved Prakash sent by SI Jitender. The carbon copy of the FIR is
exhibited as Ex.PW-6/B.
19. PW-7 put forth in the witness box was HC Rajinder Singh, the Duty
Officer at GTB on 22.03.1999 who testified to the effect that four sealed parcels
and two sample seals were handed over by the doctor to him i.e. one by the
doctor who examined the girl and the other by the doctor who examined the boy
and he handed over the said sealed parcels to the IO in the same condition in
which the same were delivered to him, which were seized vide seizure memo
Ex.PW-2/F by the IO in the presence of Ct.Ved Prakash.
20. PW-8 put forth in the witness box, was Ct.Ved Prakash who testified to
having accompanied Ct.Amrik Kaur and SI Jitender Singh to House No. 235
Khumra Mohalla, Ghonda, Delhi on 22.03.1999 on receipt of call at 11.15 AM
and he corroborated the prosecution version in relation to the recording of the
statement of mother of the prosecutrix, to the registration of the FIR, to the
arrest of the accused and his disclosure statement and pointing out by the
accused, to the seizure of the clothes of the accused and of the prosecutrix after
their medical examination and to the identification of the clothes seized. This
witness through cross-examination testified that there was fresh blood lying at
the spot of the occurrence which was in the nature of the blood spots on the
floor though it was not flowing.
21. The prosecutrix was produced on 16.11.1999 during trial but as
observed by the then learned ASJ, the witness did not understand any
questions even as to her name, parentage or any residential address and it
was informed by the learned APP that the witness was mentally retarded
and speech impaired. The said witness was discharged by the learned trial
Court as being incompetent to testify.
FINDINGS OF THE TRIAL COURT
22. The learned trial Court vide its impugned verdict dated 19.09.2000 has
categorically observed to the effect that the prosecution has been able to prove
the allegations against the accused/the appellant herein beyond a reasonable
doubt through the testimonies of prosecution witnesses examined. The learned
trial Court also observed to the effect that there was no plausible defence that
had been put forth on record by the accused/the appellant herein, apart from
immaterial contradictions pointed out by the counsel for the defence which as
observed by the learned trial Court, did not in any manner lend any assistance to
the accused/the appellant herein. It was also observed by the learned trial Court
that there was nothing on record to substantiate the defence of the accused/the
appellant herein that there was any dispute over any property between the father
of the prosecutrix and his brother nor was there anything on record to
substantiate the bald suggestion put to the mother of the prosecutrix i.e. to the
complainant that the father of the accused was killed by the father of the
prosecutrix by burning him with oil and rather PW-2 had volunteered that the
father of the accused had died by burning himself and that the said aspect was
not even stated by the accused/the appellant herein in his statement under
Section 313 of the Cr.P.C., 1973.
23. The learned trial Court has also observed to the effect that merely because
the mother of the prosecutrix stated that there was blood on the wall which was
not so testified by Ct. Ved Prakash nor by IO, nor by PW-5 Subhash Chand, the
same was just an exaggeration which does not affect her deposition on the
merits of the case. The learned trial Court did not give credence to the
contention raised on behalf of the accused/the appellant herein as to how a deaf
and mute girl can cry and shout at the time of alleged rape, observing that even
a mute person can cry and shout in his own way.
24. The absence of external injuries on the person of the prosecutrix and
absence of abrasions on the private part of the accused/the appellant herein were
also held inconsequential by the learned trial Court, in view of the testimony of
PW-3 Dr.Sandhya Gupta, Senior Resident, GTB who examined the prosecutrix
and had categorically deposed that blood on the undergarments of the
prosecutrix was on account of a freshly torn hymen and not due to a menstrual
cycle.
25. Delay in the medical examination of the prosecutrix was also held to be
not fatal by the learned trial Court, while observing to the effect that through the
evidence it was brought forth that it was quite possible that it took time for the
legal formalities to be completed before the actual medical examination of the
prosecutrix to be conducted.
26. The learned trial Court also observed to the effect that non-examination
of the prosecutrix in the instant case when she was mentally retarded, deaf and
dumb was in no way fatal to the prosecution version as was contended on behalf
of the defence placing reliance on Section 119 of the Indian Evidence Act,
1872.
27. The non-examination of Ct.Brij Pal who deposited the sealed parcels at
the CFSL and the non-examination of the MHC(M) in the facts and
circumstances of the instant case where the CFSL reports Ex. PW-10/D and
PW-11/A indicated that the parcels were found to be packed on receipt with
description of seals intact, when they were received, - was also held to be
insufficient to falsify the prosecution version, - especially in view of the
categorical testimonies of the complainant PW-2 and other witnesses examined.
28. The learned trial Court also observed to the effect that the consent of the
prosecutrix was not so material in this case, she being of unsound mind and thus
naturally not able to understand the nature and consequence of the act, and that
apart from the same, the mother of the prosecutrix had categorically testified to
the effect that the prosecutrix was resisting the commission of the offence by
shouting and screaming.
CONTENTIONS OF THE APPELLANT
29. Through the present appeal the accused/the appellant herein, has put forth
the very same submissions that were made before the learned trial Court in
relation to the :
time of arrest of the accused/the appellant herein
to the non- seizure of blood stained earth;
to the delay in the medical examination of the prosecutrix and the
accused/the appellant herein;
qua the delay in registration of the FIR
qua the aspect that the complainant did not give the name of the
perpetrator of the crime at the hospital and
qua the aspect that the medical examination of the accused/the appellant
herein also allegedly disproved the allegations against the appellant
that the prosecutrix was the cousin sister of the appellant and it was thus
highly unbelievable and rather revolting to suggest that the appellant
would ravish his own sister;
that there was no report to indicate that the copy of the said report i.e.
complaint/information was sent to learned MM;
that the CFSL report qua the medical evidence did not support the
prosecution version;
that the judgment of the trial Court was based on conjectures and
surmises and
that in any event the sentence awarded to the appellant was harsh.
30. To similar effect, were the submissions made on behalf of the appellant
by Mr.M.L.Yadav, learned counsel for the accused/the appellant herein during
the course of arguments of the present appeal.
CONTENTIONS OF THE RESPONDENT/STATE
31. The State on the other hand, through the learned Addl. PP Ms.Aashaa
Tiwari pointed out that the testimonies of the prosecution witnesses examined
by the learned trial Court, especially the testimony of PW-2, the mother of the
prosecutrix who reached the spot whilst the offence of the rape was being
committed by the accused/the appellant herein on her daughter the prosecutrix,
who was shouting and making a noise and the testimony of PW-5 who
apprehended the accused/the appellant herein and prevented him from escaping
when the mother of the prosecutrix was trying to prevent him from running
away after she had pushed open the door of the room of the first floor of the
house of the accused/the appellant herein where he was committing rape on his
own cousin sister who was both physically and mentally disabled being unable
to speak, unable to hear and who was mentally retarded, all since birth, -
established the guilt of the accused/the appellant herein beyond a reasonable
doubt.
32. It was also submitted on behalf of the State that the CFSL reports proved
through the testimonies of PW-11 Mrs. G.Bhattacharya and PW-12
Dr.I.Haque whose testimonies have remained unchallenged, - established the
existence of human semen of the blood group AB which blood group, was also
the blood group of the accused/the appellant herein, on the clothes of the
prosecutrix. The State also relied on the testimony of PW-3 Dr.Sandhya
Gupta whose testimony brought forth categorically that the blood stains on the
clothes of the prosecutrix were due to the hymen being recently torn and who
testified also through her testimony on oath that there was vaginal bleeding.
ANALYSIS
33. On a consideration of the entire available record and rival pleas put forth
on behalf of either side, it is brought forth that the testimonies of PW-2, the
mother of the prosecutrix, PW-5, the witness who prevented the accused/the
appellant herein from absconding when he heard the noise of Pakro-pakro being
shouted by the mother of the prosecutrix and who also saw the prosecutrix lying
on the floor with open and dishevelled clothes, who saw blood spots on the
floor, coupled with the factum that the accused/the appellant herein, took
advantage of the factum that the prosecutrix was mentally retarded, deaf and
dumb since birth and a minor, coupled with the CFSL reports on the record
which stand proved through the testimonies of, PW-11 Dr.G.Bhattacharya and
PW-12 Dr.I.Haque, which establish the existence of human semen on the
clothes of the prosecutrix and also bring forth that the human semen of blood
group AB which was as per the serological report Ex.PW10/D and Ex.PW11/A
was also the blood grouping of the accused, - all bring forth the commission of
the offence of „rape‟ by the accused/the appellant herein on the prosecutrix on
22.03.1999 at about 10.25 AM at house No. 235 Khumra Mohalla, Ghonda,
Delhi, punishable under Section 376 IPC, 1860, - beyond a reasonable doubt.
CONCLUSION
34. The impugned judgment of the learned trial Court dated 19.09.2000 thus
suffers from no infirmity nor from any mis-appreciation of evidence and rather
takes into account the entire evidence on the record and the statement of the
accused under Section 313 Cr.P.C. 1973 rationally and appropriately. There is
no reason to differ with the observations of the learned trial Court in relation to
the aspect that the contradictions sought to be brought forth on behalf of the
accused/the appellant herein, in the facts and circumstances of the instant case,
are wholly immaterial especially, where the testimonies of material witnesses
PW-2, the mother of the prosecutrix and PW-5 Subhash Chand who
apprehended the accused/the appellant herein while he was trying to flee away
and who saw the prosecutrix lying on the floor with the clothes open and
dishevelled condition and the blood stains on the floor, coupled with the
testimonies of the CFSL experts PW-11 and PW-12, coupled with the
testimony of PW-1 Dr.T.R.Ramtek whose testimony brings forth that he had
handed over the blood sample of the accused of the undergarments to the IO,
coupled with the testimony of PW-3 Dr.Sandhya Gupta whose testimony was
categorical to the effect that the hymen was freshly torn and she found fresh
bleeding and that the said bleeding was not due to any menstruation cycle,
coupled with the factum that the PW-3 has also handed over the clothes of the
prosecutrix along with the blood sample along with the blood sample to the
Constable to be handed over to the IO which clothes of the prosecutrix and of
the accused and their blood samples were examined at the CFSL, and which
CFSL results, corroborate the existence of human semen of the blood grouping
of the accused/the appellant herein on the clothes of the prosecutrix and also
corroborate the existence of blood stains on the clothes.
35. The delay in registration of the FIR and the delay in the medical
examination conducted of the prosecutrix in the instant case also does not in any
manner detract from the veracity of the prosecution version, in view of the
totality of the prosecution evidence on record, which establishes the commission
of the offence of the rape by the accused/the appellant herein on the prosecutrix.
36. The impugned judgment dated 19.09.2000 in State Case No. 78/99 in
relation to FIR No. 153/99, PS Bhajanpura, is thus upheld.
QUANTUM OF SENTENCE
37. On behalf of the accused/the appellant herein, it was submitted that the
impugned sentence dated 20.09.1999 whereby the accused/the appellant herein
was sentenced to life imprisonment and to pay a fine of Rs.5000/- and in default
to suffer six months of simple imprisonment with the benefit of Section 428 of
Cr.P.C. was unduly harsh and it was sought that the same be modified.
38. A perusal of the record indicates that the accused/the appellant herein was
aged 23 years on the date of commission of the offence i.e. 22.03.1999 and the
nominal roll dated 24.01.2017 received from the Superintendent Central Jail -1,
Tihar, New Delhi indicates that the accused/the appellant herein has undergone
a period of 7 years, 7 months and 27 days of imprisonment as on 13.12.2006.
39. During the course of submissions made on behalf of the accused/the
appellant herein it was submitted that the appellant is presently on bail since
13.12.2006, having been released on bail in terms of order dated 11.12.2006
of this Court.
40. It is essential to observe that the offence committed by the
appellant is gruesome and barbaric. However, taking into account the
factum that there are no other cases against the accused/the appellant
herein and no previous convictions against him, it is essential that the
sentence imposed on the accused/the appellant herein acts as a
deterrent and simultaneously is reformative with a prospect of
rehabilitation.
41. The Law Commission of India in its 42nd report in relation to the Indian
Penal Code also observed vide para 3.9 to the effect that a current development
in penology is the emphasis of reformation and rehabilitation of the offenders
instead of retribution. The Supreme Court in T.K.Gopal vs. State of Karnataka
(2000) 6 SCC 168 had observed as under : -
"That a therapeutic approach in an effective method
of punishment which not only satisfied the
requirements of law that a criminal should be
punished and the punishment prescribed must be
meted out to him which also simultaneously reforms
the criminal through processes, the most fundamental
of which is that inspite of having committed a crime,
even it be a heinous crime, he should be treated as a
human being entitled to all basic human rights, human
dignity and human sympathy."
42. Justice R.C. Lahoti, the former Hon‟ble the Chief Justice of India in a
letter dated 13th June, 2013 addressed to the then Hon‟ble the Chief Justice of
India observed that the conditions in prisons were rather disturbing. The said
letter was registered as a Public Interest Litigation, - i.e. Writ Petition Civil No.
406/2013 - RE - Inhuman Conditions in 1382 Prisons and vide verdict dated
05th February, 2016, it was directed by the Apex Court vide para 56 to the effect
that prisoners like all human beings deserve to be treated with dignity and to
give effect to this, one of the positive directions issued at serial no. 5 thereof
was to the effect : -
"The Director General of Police/Inspector General
of Police in-charge of prisons should ensure that
there is proper and effective utilization of available
funds so that the living condition of the prisoners
is commensurate with human dignity. This also
includes the issue of their health, hygiene, food,
clothing, rehabilitation etc."
(emphasis supplied)
43. Justice Madan B. Lokur, in para 57 of the said judgment, also directed
that the Model Prison Manual which is a composite document dealing with
the variety of issues including custodial management, medical care,
education of prisoners, vocational training and skill development
programme, legal aid, welfare of prisoner, after care and rehabilitation,
Board of Visitors, prison computerization and so on and so forth, - needed
to be implemented with due seriousness and dispatch.
44. The modalities laid down in the Model Prison Manual 2016 for the
superintendence and management of prisoners in India prepared by the Ministry
of Home Affairs, Government of India, New Delhi vide Chapter XXII clause
22.01 prescribe that "the process of after-care and rehabilitation of offenders
is an integral part of institutional care and treatment".
45. The verdict of the Apex Court in W.P.(C) No. 406/2013 dated 05.02.2016
also made reference to the aspect detailed in „Decency, Dignity, and Desert:
Restoring Ideals of Humane Punishment to Constitutional Discourse by Eva S.
Nilsen, Boston University School of Law Working Paper Series, Public Law &
Legal Theory Working Paper No. 07-33‟, to the effect that :
"Judges rarely express concern for the inhumane
treatment that the person being sentenced is likely to
face from fellow prisoners and prison officials, or that
time in prison provides poor preparation for a
productive life afterwards. Courts rarely consider
tragic personal pasts that may be partly responsible for
criminal behaviour, or how the communities and
families of a defendant will suffer during and long
after his imprisonment."
46. The Standard Minimum Rules for the Treatment of Prisoners adopted by
the First United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held at Geneva in 1955, and approved by the Economic
and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076
(LXII) of 13 May, 1977 bring forth guiding principles in relation to the
prisoners under sentence which prescribed as follows : -
"56. The guiding principles hereafter are intended to
show the spirit in which penal institutions should be
administered and the purposes at which they should
aim, in accordance with the declaration made under
Preliminary Observation 1 of the present text.
57. Imprisonment and other measures which result in
cutting off an offender from the outside world are
afflictive by the very fact of taking from the person the
right of self-determination by depriving him of his
liberty. Therefore the prison system shall not, except
as incidental to justifiable segregation or the
maintenance of discipline, aggravate the suffering
inherent in such a situation.
58. The purpose and justification of a sentence of
imprisonment or a similar measure deprivative of
liberty is ultimately to protect society against crime.
This end can only be achieved if the period of
imprisonment is used to ensure, so far as possible,
that upon his return to society the offender is not
only willing but able to lead a law-abiding and self-
supporting life.
59. To this end, the institution should utilize all the
remedial, educational, moral, spiritual and other
forces and forms of assistance which are appropriate
and available, and should seek to apply them
according to the individual treatment needs of the
prisoners.
60. (1) The regime of the institution should seek to
minimize any differences between prison life and life
at liberty which tend to lessen the responsibility of
the prisoners or the respect due to their dignity as
human beings.
(2) Before the completion of the sentence, it is
desirable that the necessary steps be taken to ensure
for the prisoner a gradual return to life in society.
This aim may be achieved, depending on the case, by
a pre-release regime organized in the same institution
or in another appropriate institution, or by release on
trial under some kind of supervision which must not
be entrusted to the police but should be combined with
effective social aid.
61. The treatment of prisoners should emphasize not
their exclusion from the community, but their
continuing part in it. Community agencies should,
therefore, be enlisted wherever possible to assist the
staff of the institution in the task of social
rehabilitation of the prisoners. There should be in
connection with every institution social workers
charged with the duty of maintaining and improving
all desirable relations of a prisoner with his family
and with valuable social agencies. Steps should be
taken to safeguard, to the maximum extent compatible
with the law and the sentence, the rights relating to
civil interests, social security rights and other social
benefits of prisoners.
62. The medical services of the institution shall seek to
detect and shall treat any physical or mental illnesses
or defects which may hamper a prisoner's
rehabilitation. All necessary medical, surgical and
psychiatric services shall be provided to that end.
63.
(1) The fulfilment of these principles requires
individualization of treatment and for this purpose a
flexible system of classifying prisoners in groups; it is
therefore desirable that such groups should be
distributed in separate institutions suitable for the
treatment of each group.
(2) These institutions need not provide the same
degree of security for every group. It is desirable to
provide varying degrees of security according to the
needs of different groups. Open institutions, by the
very fact that they provide no physical security against
escape but rely on the self-discipline of the inmates,
provide the conditions most favourable to
rehabilitation for carefully selected prisoners.
(3) It is desirable that the number of prisoners in
closed institutions should not be so large that the
individualization of treatment is hindered. In some
countries it is considered that the population of such
institutions should not exceed five hundred. In open
institutions the population should be as small as
possible.
(4) On the other hand, it is undesirable to maintain
prisons which are so small that proper facilities
cannot be provided.
64. The duty of society does not end with a prisoner's
release. There should, therefore, be governmental or
private agencies capable of lending the released
prisoner efficient after-care directed towards the
lessening of prejudice against him and towards his
social rehabilitation.
47. The International Covenant on Civil and Political Rights, adopted by the
General Assembly of the United Nations on 19 December, 1966 vide article
10.3 thereof lays down as under : -
"The penitentiary system shall comprise treatment of
prisoners the essential aim of which shall be their
reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be
accorded treatment appropriate to their age and legal
status."
48. The statutory provisions of Section 376 (1) of the IPC 1860, as it stood on
the date of the commission of the offence i.e. 22.03.1999, were to the effect that
in cases other than those falling in as prescribed in the unamended Section 376
(2) thereof, were punishable with imprisonment of either description for a term
which was to be not less than seven years, but which imprisonment could be for
life or for a term which could be extended to ten years and would also be liable
to pay fine unless the woman was his own wife and was not under the age of 12
years.
49. Professor Mrinal Satish in his book "Discretion, Discrimination,
Reforming Rape Sentencing in India" in Chapter 4 titled Rape Sentencing: An
Empirical Analysis observes:
"Considering age as a mitigating factor in the matter that Indian Courts
have done in rape cases, exemplifies arbitrariness for two reasons. First,
considering young age as a mitigating factor might be permissible if the
primary theory of punishment employed is reformation of the offender.
Such an approach would not imply that the defendant be released, but
that he takes part in programme designed to ensure that he does not re-
offend........................"
50. It is trite that age or circumstances of the accused per se cannot be treated
as the mitigating factors on which the order of sentence could rest. But this is of
significance when tested in the context of the time which lapsed since the date
of commission of the offence. The delay in hearing the appeal is not
attributable to the appellant. We note that on 22.03.1999, the date of
commission of the offence, the present appellant was only aged 23 years, and
stands convicted by the judgment dated 30.09.2000. In the present case, the
sentence imposed upon the appellant was suspended by the order dated
11.12.2006 when the offender has already undergone a period of imprisonment
of 7 years, 7 months and 27 days. Since the date of suspension of his sentence,
more than ten years have passed. From the date of the commission of the
offence on 22.03.1999, almost seventeen years have passed. The 23 years old
offender would be in his forties today. He would have been around thirty years
of age on 4th December, 2006 when his sentence was suspended. We have no
information regarding the financial status of the appellant or as to how his
family is positioned. Is he married and does he have the responsibility of
looking after a family ?
51. It could be argued that if the appeal had been heard expeditiously, even if
the order of life sentence had been maintained, the appellant would have long
ago been able to seek executive pardon. Hence the sentence of imprisonment,
which is hereby proposed.
52. On a consideration of the entirety of circumstances, given the serious
nature of the offence committed by the appellant, so that he is given an
opportunity to reform and make useful contribution to society and not waste his
existence, we consider it appropriate to reduce the sentence imposed by the
learned trial Court of life imprisonment and of a fine of Rs.5000/- and in default
of a payment of the said fine to undergo simple imprisonment for six months,
which is thus so reduced and modified, - to a sentence of Rigorous
Imprisonment for a period of ten (10) years and to pay a fine of Rs.5000/- and in
default of the payment of the said fine to undergo simple imprisonment for a
period of six months with the benefit of set off of the period of the detention
already undergone by the appellant being granted to the appellant in terms of
Section 428 of the Cr.P.C. 1973, with positive directions as detailed in para 49
above.
53. It is further essential that the following directives are given to the reduced
sentence of imprisonment, to ensure as laid down by the Supreme Court in Phul
Singh Vs. State of Haryana in Criminal Appeal No. 506/1979 decided on
10.09.1979 that the " carceral period reforms the convict".
54. The concerned Superintendent at the Tihar Jail, New Delhi where the
appellant shall be incarcerated for the remainder of the term of imprisonment as
hereinabove directed shall consider an appropriate programme for the appellant
ensuring, if feasible :
appropriate correctional courses through meditational
therapy;
educational opportunity, vocational training and skill
development programme to enable a livelihood option and an
occupational status;
involvement in sports activities and creative art therapy
shaping of post release rehabilitation programme for the
appellant well in advance before the date of his release to make
him self-dependent,
ensuring in terms of Chapter 22 clause 22.22 (II) Model
Prison Manual 2016, protection of the appellant from getting
associated with anti - social groups, agencies of moral hazards
(like gambling dens, drinking places and brothels) and with
demoralised and deprived persons;
adequate counselling being provided to the appellant to
be sensitized to understand why he is in prison;
conducting of Psychometric tests to measure the
reformation taking place; and
that the appellant may be allowed to keep contact with
his family members as per the Jail rules and in accordance
with the Model Prison Manual.
55. Furthermore, it is directed that a Bi-annual report is submitted by
the Superintendent, Tihar Jail, New Delhi to this Court till the date of
release, of the measures being adopted for reformation and rehabilitation
of the appellant.
56. Copy of this judgment be also sent to the Director General, Prisons,
Delhi and to the Secretary, Law, Justice and Legislative Affairs, GNCTD,
Delhi to ensure compliance of the above directions
57. The accused/the appellant herein who is on bail in terms of order dated
11.12.2006 of this Court and was released as such on 13.12.2006 as per the
nominal roll received from the Superintendent Central Jail-1, Tihar, New Delhi,
is now directed to surrender to custody within 30 days of this judgment to
undergo the sentence as modified and awarded by this Court. The learned trial
Court (or the successor Court) and the SHO of PS Bhajanpura shall take suitable
steps to ensure the compliance of this judgment.
58. The impugned order on sentence dated 20.09.2000 of the learned ASJ,
Karkardooma, Shahdara in State Case No. 78/99 in relation to FIR No.153/99,
PS Bhajanpura is modified accordingly.
59. Criminal Appeal No.600/2000 is disposed off accordingly.
60. The Registry shall ensure that the copy of this judgment is forthwith
served on the appellant and his learned counsel Sh. M.L. Yadav.
61. The record of the trial Court be returned forthwith.
ANU MALHOTRA, J
FEBRUARY 20, 2017 GITA MITTAL, J
Mr
