Pawan Kumar @ Deepu vs State on 12 June, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Order: June 12, 2017

+ CRL.A. 737/2014

PAWAN KUMAR @ DEEPU ….. Appellant
Through: Mr. Aditya Vikram, Delhi High
Court Legal Services Committee’s
Panel Advocate
versus

STATE ….. Respondent
Through: Mr. Mukesh Kumar, Additional
Public Prosecutor for State with SI
Pardeep
CORAM:

HON’BLE MR. JUSTICE SUNIL GAUR

ORDER

% (ORAL)

In this appeal, appellant has been held guilty for the offences under
Sections 363/366/328/376/506 of IPC vide impugned judgment of 27 th
March, 2014 and vide order of 29th March, 2014, he has been sentenced
to rigorous imprisonment for 10 years with fine of `10,000/- for the
offence under
Section 376 of IPC and for the offences under Sections
328/
363/366 of IPC, he has been sentenced to rigorous imprisonment for
5 years with fine of `4,000/- for each of these offences, with default
clause. However, for the offence under
Section 506 of IPC, he has been

CRL.A. 737/2014 Page 1 of 5
sentenced to rigorous imprisonment for 3 years with fine of `3,000/- with
default clause. Trial court has directed that the above sentences shall run
concurrently.

The facts emerging from impugned judgment are already noted in
detail in the opening paragraphs of impugned judgment and need no
reproduction. Suffice to note that as per prosecutrix (PW-1), her age was
15½ years on the day of incident i.e. on 16 th April, 2011. Apart from
evidence of prosecutrix (PW-1), there is evidence of parents (PW-3
PW-4) of prosecutrix, medical evidence and the other evidence, on which
trial court has relied while discarding appellant’s plea of false implication
and has convicted and sentenced appellant as noticed hereinabove.

At the outset, learned counsel for appellant submits that appellant
on the day of incident i.e. 16th April, 2011, was in his early twenties and
was unmarried. It is also submitted that appellant is a poor person, and a
sole bread-earner of his family and that he is not involved in any other
case and his conduct in jail has been satisfactory and so, the sentence
awarded to appellant deserves to be reduced to the period already
undergone by him.

READ  Monika Goyal And Ors vs State Of Punjab And Ors on 19 May, 2017

On the other hand, learned Additional Public Prosecutor for State
supports the impugned judgment and order on sentence and submits that
though the minimum sentenced provided for the offence under Section
376 of IPC on the day of incident was seven years, but the sentence
awarded to appellant is just and proper in the facts of the instant case.
Learned Additional Public Prosecutor for State has placed on record
appellant’s latest Nominal Roll of 9th June, 2017 and submits that as per

CRL.A. 737/2014 Page 2 of 5
appellant’s latest Nominal Roll, appellant has already undergone sentence
of six years and ten months and appellant’s sentence has been recently
suspended.

A Coordinate Bench of this Court in a case of rape of minor girl in
Crl.A. No.322/
2016 Vikas vs. State, decided on 5th June, 2017 and
Crl.A.No. 438/
2011 Sandeep vs. State vide order of 8th August, 2012 has
reduced minimum sentence of seven years to five years while taking note
of antecedents of accused, his past conduct and the manner in which the
incident took place.

Upon hearing and on perusal of impugned judgment, order on
sentence, appellant’s Nominal Roll of 9th June, 2017 and the evidence on
record, I find that conviction of appellant cannot be faulted with.
However, there is scope for reduction of the sentence awarded to
appellant, as he is not involved in any other case and his conduct in jail
has been satisfactory. In any case, there is no impediment in reducing the
sentence awarded to appellant from ten years to minimum sentence of
seven years, but it is to be seen as to what are the adequate and special
reasons to further reduce the minimum sentence of 7 years by a couple of
months.

READ  All R/O Sarangpur, Tq. Gangapur vs Through Police Station on 29 March, 2012

No doubt, the offence of rape is heinous crime, but when this
offence was committed, the Proviso to Sub-section (1) of Section 376 of
IPC permitted imposition of sentence less than the minimum sentence of
seven years for adequate and special reasons. To levy an appropriate
sentence, ample discretion was conferred on the courts when the offence
in question was committed. The discretion to award sentence for a period

CRL.A. 737/2014 Page 3 of 5
less than the minimum sentence provided is not unfettered. Various
factors, like the nature, gravity, manner and the circumstances under
which the offence was committed, as well as the antecedents of accused
have to be cumulatively considered. Upon doing so, in the instant case, I
find that it is not a case of seducing or enticing away of the prosecutrix.

As per prosecutrix’s version, appellant-accused had offered to
marry prosecutrix (PW-1) and it is not the case of prosecutrix (PW-1) that
she had declined to marry appellant by asserting that she is of minor age.
The sequence of events as unfolded by prosecution reveals that there was
an agreement to marry (Ikrarnama), which prosecutrix (PW-1) had
signed in front of two witnesses. It has also come in the evidence that
after this incident, prosecutrix (PW-1) had talked on phone with her
father and she was kept at the house of appellant’s aunt (Bua). Evidently,
prosecutrix (PW-1) was being treated as a family member. This stands
substantiated from the fact that prosecutrix had also talked to appellant’s
father on phone.

Upon taking into consideration that appellant was in his early
twenties then and he was working where prosecutrix’s father was
working and that appellant was on visiting terms with the family of
prosecutrix and that the prosecutrix was treated well by appellant-accused
and his relatives, while she had remained with appellant, I find that the
above-noted circumstances provide special reasons for marginally
reducing the sentence awarded to appellant to less than the minimum
sentence prescribed.

READ  Sri. Deepkumar H R vs State Of Karnataka By on 2 June, 2017

CRL.A. 737/2014 Page 4 of 5

In the peculiar facts and circumstances of this case, the substantive
sentence awarded to appellant is reduced to 6½ years i.e. marginally less
than the minimum sentence of 7 years. In addition, the sentence of four
months already undergone by appellant over and above the sentence of
6½ years, is treated as sentence in default of payment of fine for the
offences in question. It is noted in the Nominal Roll of appellant that in
pursuance to order of 3rd May, 2017, appellant has been released on bail
on 16th May, 2017. Since the entire sentence awarded to appellant is
reduced to the period already undergone by him, so the bail-bonds
furnished by him are discharged.

In view of the aforesaid, the sentence awarded to appellant is
modified to the extent as indicated above.

With aforesaid directions, this appeal is disposed of.

(SUNIL GAUR)
JUDGE
JUNE 12, 2017
s

CRL.A. 737/2014 Page 5 of 5

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