Delhi High Court
Randhir @ Malang vs State on 28 August, 2018
$~ 50
*IN THE HIGH COURT OF DELHI AT NEW DELHI
%
+ CRL. A. 456/2017
Date of Decision: 28.08.2018
RANDHIR @ MALANG ..... Appellant
Through: Mr. Neeraj Bhardwaj, Adv.
Versus
STATE ..... Respondent
Through: Ms. Kusum Dhalla, APP for
State.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
1. The appellant has been produced pursuant to production
warrants issued in terms of order dated 07.07.2018 from the Central
Jail No.4, Tihar, New Delhi. The nominal roll in terms of order dated
07.07.2018 has also been received from the Superintendent of Prison,
Central Jail No.4, Tihar, New Delhi indicating to the effect that as on
20.08.2018, the appellant had undergone five years, four months and
two days of incarceration qua the impugned sentence awarded vide
order dated 30.03.2017 in the State Case No.51/2/13 of a period of 13
years of Rigorous Imprisonment for the offence punishable under
Section 6 r/w Section 5 (m) of the POCSO Act, 2012 and was
sentenced to a further period of Rigorous Imprisonment of one year
for the offence punishable under Section 323 of the Indian Penal
Code, 1860 and was further sentenced a fine of Rs.50,000/- for the
offence punishable under Section 6 r/w 5 (m) of the POCSO Act with
it having been directed in the event of default of the payment of the
said fine, the convict i.e. the appellant herein would undergone one
year of Simple Imprisonment and out of the said fine of Rs.50,000/-,
Rs.40,000/- was directed to be paid to the child/victim with the
benefit of Section 428 of the Cr.PC, 1973 having been granted to the
convict. Both the sentences were directed to be run concurrently.
2. The nominal roll indicates that a period of seven years, three
months and 23 days as on 20.08.2018 is the unexpired period of
sentence in the event of the fine being paid and apparently the nominal
roll indicates that the fine has not been paid.
3. On behalf of the appellant learned counsel for the appellant
does not press the appeal on merits in view of the testimony of the
prosecutrix/the minor child and in view of the FSL result on the record
and the MLC on the record in relation to the minor child. A
submission is however made on behalf of the appellant that the
sentence imposed be reduced which has been vehemently opposed on
behalf of the State by the learned APP for the State submitting to the
effect that despite the statement made by PW-2 that the appellant was
in a drunken/ intoxicated state nevertheless the testimony of the PW-2
Shokeen and the statement made by the prosecutrix both under Section
164 of the Cr.P.C., 1973 and the statement of the prosecutrix
examined as PW-1 are to the extent that the appellant on being seen by
the eye witness PW-2 had gone to the extent of throwing the minor
child/ the prosecutrix aged two and a half years at the time of the
occurrence into the drain after committing penetrative sexual assault
on the person of the child by inserting his penis into her vagina and
also having caused hurt to her qua which the charge was framed on the
date 06.09.2013, coupled with the testimony of the minor child
examined as PW-1 which even goes to the extent of stating that the
accused/convict i.e. the appellant herein had inserted his underwear
into her mouth, coupled with the FSL result dated 29.11.2016 Ex. PW
21/D as also adverted to hereinabove which bring forth the
prosecution version in relation to the DNA profile (STR analysis)
generated from the blood sample of the victim, anal swabs of the
victim, nails clippings of the victim, frock of the victim, blood sample
of the accused, blood and semen stains from the underwear from the
spot and the DNA profile generated from the source of the Ex.14a i.e.
the blood sample of the accused being similar with the DNA profile
generated from the source of Ex.16 i.e. the semen stains from the
underwear from spot, it is apparent that there is no ground for grant of
any leniency whatsoever.
4. However, in terms of the verdict of Supreme Court in Phul
Singh Vs. State of Haryana in Criminal Appeal No. 506/1979 decided
on 10.09.1979 and directions laid down by us in Sanjay vs. State 2017
III AD (Delhi) 24¸ dated 20.02.2017 so that the "carceral period
reforms the convict" it is essential that the following directives
detailed hereunder are given qua the reduced sentence of
imprisonment so that the sentence acts as a deterrent and is
simultaneously reformative with a prospect of rehabilitation.
5. 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;
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.
6. 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. Though vide the impugned order on
sentence the convict has been sentenced to pay a fine of Rs.50,000/-
for the offence punishable under Section 6 read with Section of the
POCSO Act and out of the said fine Rs.40,000/- had been directed to
be paid to the child victim and that the appellant having been directed
to undergo one year of simple imprisonment in the event of default of
fine and as the nominal roll received from the Superintendent, Central
Jail No.4, Tihar, New Delhi indicates that the fine has not been paid
by the appellant, coupled with the factum that there has been no
referral by the learned Trial Court to the Victim Compensation
Scheme for Delhi formulated under Section 357 A of the Cr.P.C.,
1973 where the minimum compensation for a rape victim is specified
as Rs.3,00,000/- and a maximum Rs.5,00,000/-, in terms of the verdict
of the Hon'ble Division Bench of this Court in Ramdass V. State
Crl.A 572/2018, the verdict dated 2.8.2018, and the verdict of the
Hon'ble Division Bench of this Court in Rakesh V. State Crl.A.
125/2003, the verdict dated 26.7.2018, the Delhi State Legal Services
Authority (DSLSA) is directed to examine this issue forthwith and to
ensure that the minor victim examined as PW1 receives the
appropriate compensation that she is entitled to in accordance with the
Victim Compensation Scheme for Delhi formulated under Section 357
A of the Cr.P.C, 1973.
7. The appeal and the prayer seeking reduction of sentence are
both declined.
8. Copy of this judgment be also sent to the Principal Secretary,
Delhi State Legal Services Authority, through a Special Messenger for
the said compliance and be also sent to the Superintendent, Central
Jail No.4, Tihar Jail, for being handed over and explained to the
appellant, the Director General, Prisons, Delhi and to the Secretary,
Law, Justice and Legislative Affairs, GNCTD, Delhi to ensure
compliance of the above directions.
The Trial Court Record be returned with the certified copy of
this judgment.
ANU MALHOTRA, J
AUGUST 28, 2018
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