Delhi High Court
Surinder Kumar vs State on 21 December, 2018
$~R-61
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21®^ December, 2018
+ CRL.A. 530/2002
SURINDER KUMAR, Appellant
Through: Mr. Rajeev Bajaj, Cwne
versus
STATE Respondent
Through:- Mr. Kewal Singh Ahuja, APP
, for the State
CORAM: - . '
HON'BLE MR. JUSTICE R^KG^BAj
ORDER (ORAL)
1. The appellant was arrested ;Oril2:i/54 and brought to trial
(in Sessions Case No.240/r9f6);on;^-^^^^^ report (charge sheet)
under Section 173 of the cMe 6f)drim 1973 (Cr.P.C.)
submitted upon conclusion of Investigation into first information
report (FIR) No.l 19/1996 of Police Station -Hauz Qazi, involving
offences punishable under Sections •376/349/506/323/363/366 of
Indian Penal Code, 1860 (IPC). On conclusion of the said trial, he was
held guilty and convicted on the charge for offence under Sections
363/366/376(f) and Section 506 (II Part) IPC. By order on sentence
passed on 30.03.2002, the trial court awarded rigorous imprisonment
for four years under Section 363 IPC, rigorous imprisonment for seven
years with fine of Rs.3,000/- for offence under Section 366, rigorous
Crl. Appeal 530/2002 Page I of4
imprisonment for ten years with fine of Rs.9,000/- for offence under
Section 376(f) IPG and rigorous imprisonment for two years for
offences under Section 506 (II Part) IPG. The trial court directed that
in case of default in payment of fine imposed for offences under
Section 366 and 376(f) IPG, the appellant would undergo further
rigorous imprisonment for one month and three months respectively.
The substantive sentences on all four counts were directed to run
r-
concurrently with benefit of set off in terms of Section 428 Gr.P.G.
having been accorded.
2. The present appeal was ' filed'to assail the said judgment and
order on conviction. On ;19.O4.260M the appellant moved an
application praying for he to be released ^ith punishment restricted to
the period of detention already/,undergone, thereby indicating he was
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not challenging the judgment :pn;co:nvic;tion on merits. The learned
Single Judge then 0 to enlarge the
appellant on bail suspendiiig^thevs^ehc^l^ dated 19.04.2004.
c-
The nominal roll dated 06.07.2018 s'eht by the Superintendent Gentral
Jail No.7, Tihar, indicates the appellant had by then undergone
incarceration for nine years,r twO ; m^hths-and sixteen days, this
including the period of remission earned.
3. At the hearing, the learned counsel (appointed by Delhi High
Gourt Legal Services Gommittee), representing the appellant
submitted that the judgment of conviction on merits is not challenged,
the only plea raised being that the evidence clearly shows that the
prosecutrix was over twelve years in age and, therefore, minimum
Crl Appeal 530/2002 Page 2 of4
punishment prescribed in law for the offence of rape under Section
376 (2)(f) IPG, as then in vogue, would not apply. It is submitted that
there is a case made out for rigor ofthe sentence to be reduced.
4. Having heard both sides and having gone through the record,
this court finds merit in the above contentions with regard to the age
of the prosecutrix (PW-3). She gave her own age as 12 years. Her
mother (PW-6) also testified at the trial and gave her age as the
relevant point of time to be 12 years. Though the prosecution had also
relied on municipal record (Ex.PW-H/A) indicating the age to be less
than 12 years old, it cannot be ignored that the said municipal record
was not prepared contemp6^aneousiyy,.-tt been based on
application which was later ni^de, it; not being clear as to how it is to
be connected to the prosecutrix,.her relevant particulars being missing
there fi-om. There is no schobl ^recbrd favailable in respect of the
prosecutrix. In these circumstances, only reliable material to
gauge the age of the prose&i^^^M opmipn (Ex.PW-2/A) of PW-2,
the radiologist of LNJP hospitd who confirmed that it (the age of the
prosecutrix) could be up to thirteen years. It is the upper age limit
indicated by the opinion which will hd^eito be assumed in favour of
the defence. Thus, the assumption ofthe trial court that the prosecutrix
was less than twelve years ofage on the relevant date is found to be
erroneous.
5. The incident which is the subject niatter of this case occurred
more than twenty-two years ago. The appeal has been pending for
over sixteen years now. Having regard to these facts and
Crl. Appeal 530/2002 '
circumstances, this court is of the view that ends of justice would be
met if the punishment for the offence under Section 376 IPG is
modified to rigorous imprisonment for seven years with fine as
imposed by the trial court.
6. Ordered accordingly.
7. Having regard to the period of incarceration already suffered, it
would undoubtedly include the period served in default of payment of
fine. In this view, there need be no directions for the appellant to
surrender back to custody. > J •
8. The appeal stands disposed of in abpve terms.
•'v
•• .•
^^ R.K. GAUBA,J.
'• -
DECEMBER 21,2018
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Crl. Appeal 530/2002 Page 4 of4
