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Albaksh vs State on 7 June, 2017

Date of Decision: June 07, 2017

+ CRL.A. 1147/2014

ALBAKSH ….. Appellant
Through: Mr. Amar Nath, Amicus Curiae
with Mr. Azhar Qayum, DHCLSC
Panel Advocate


STATE ….. Respondent
Through: Ms. Neelam Sharma, Addl. Public


% (ORAL)

In this appeal, the challenge is to the impugned conviction and
sentence for the offence of rape. The alleged incident is of 8th April, 2010.
FIR of this Case has been registered on the statement of Patrolling
Officer, who was at DND Flyway. Vide impugned order of 14th
December, 2013, appellant has been sentenced to rigorous imprisonment
for ten years with fine of `50,000/- with default clause for raping a
subnormal minor girl. The crux of prosecution case, as noted by the trial
court in the impugned judgment, is as under:-

“…In her statement before the court prosecutrix deposed
that she along with her father had come from their native
Crl.Appeal No.1147/2014 Page 1 of 5
village to Delhi. Her father used to go out for work and
she used to remain in the room. One day the door of the
room remained open and the accused took her from the
room by catching hold of her hand. The accused slapped
on her face and head. Accused rubbed her body and got
her laid on the ground.”

Apart from the evidence of prosecutrix (PW-18), there is evidence
of Patrolling Officer (PW-1), Guards (PW-8 PW-9) on the DND
Flyway, Dr. Manju Mehta (PW-5), Dr. Sujata (PW-16), Dr. Pankaj
Kumar (PW-17), who had proved the MLC of prosecutrix and the two
Investigating Officers (PW-19 PW-20). The stand of appellant is of
being falsely implicated in this case due to a quarrel with the traffic
police at their booth, on taking of water from the booth. However,
appellant has not led any evidence before the trial court. While discarding
the defence plea and on relying on the prosecution evidence, trial court
has convicted and sentenced appellant, as noted herein above.

Pursuant to issuance of production warrants, appellant-accused has
been produced in custody.

To assail the impugned judgment and order on sentence, learned
counsel appearing for appellant submits that prosecutrix cannot be
labelled to be a mentally retarded girl as she has a low IQ only. It is
submitted on behalf of appellant that statement of prosecutrix under
Section 161 of Cr.P.C. or under Section 164 of Cr.P.C. has not been
recorded. Attention of this Court is drawn by counsel appearing on behalf
of appellant to deposition of PW-5 to point out that IQ of prosecutrix was
found to be at the level of mild mental subnormality and since prosecutrix

Crl.Appeal No.1147/2014 Page 2 of 5
was not speaking, so her formal assessment could not be done. It is next
submitted on behalf of appellant that the assessment of mental condition
of prosecutrix is incomplete and so, the case of appellant does not come
within the ambit of Clause (l) of Sub-Section 2 of Section 376 of IPC.

It is also submitted on behalf of appellant that trial court has
already held that the age of prosecutrix is not proved and so, conviction
of appellant under Sub-Section 2 of Section 376 of IPC is uncalled for. It
is further submitted on behalf of appellant that as per Nominal Roll of
appellant, he has already undergone sentence of more than seven years
and the trial court has convicted the appellant under Section 376 of IPC
simpliciter and so, the sentence awarded to appellant deserves to be
reduced to the period already undergone by him.

On the contrary is the submission of learned Additional Public
Prosecutor for respondent-State, who submits that the prosecutrix is
mentally retarded and it is so evident from her evidence and the medical
evidence on record. It is submitted that evidence of Patrolling Officer,
guards and the medical evidence sufficiently corroborates the prosecution
version. It is submitted that appellant has committed a heinous offence of
raping a minor girl who is also mentally retarded and so, the sentence
awarded to appellant is just and proper and thus, this appeal deserves to
be dismissed.

Upon hearing and on perusal of impugned judgment, order on
sentence, Nominal Roll of appellant and the record of this case, I find that
in the face of evidence of prosecutrix coupled with the medical evidence,
Crl.Appeal No.1147/2014 Page 3 of 5
the offence of rape is proved. It is to be now seen as to whether the
appellant is liable to be punished for the aggravated offence of rape or for
rape simpliciter. It is pertinent to note that when this offence was
committed, Clause (l) of Sub-Section (2) of Section 376 of IPC was not in
statute book. Undisputedly, the substantive offence cannot be made to
operate retrospectively and so appellant cannot be convicted for
committing offence punishable under Clause (l) of Sub-Section 2 of
Section 376 of IPC. Even trial court has convicted appellant for the
offence of rape simpliciter which provides for minimum sentence of
seven years. Otherwise also, it has come on record that prosecutrix was
not mentally abnormal but subnormal girl. Trial court has already held
that the prosecution has failed to prove that the prosecutrix was a minor.
This finding has not been challenged by respondent-State.

During the course of hearing it was submitted on behalf of the
appellant that he is a poor person and has a family to support and that it is
his first offence. It was pointed out by appellant’s counsel that the conduct
of appellant in jail has been satisfactory.

Taking note of the fact that appellant has not been involved in any
other criminal case and his conduct in jail is satisfactory and that he has a
family to support, the sentence awarded to appellant is reduced from 10
years to 08 years as no minimum sentence is prescribed for the offence of
rape simpliciter. Correspondingly, the sentence of fine is also reduced
from `50,000/- to `15,000/- and period in default of payment of fine is
also reduced from simple imprisonment for 06 months to simple

Crl.Appeal No.1147/2014 Page 4 of 5
imprisonment for 03 months. While maintaining the conviction of the
appellant, the sentence awarded to appellant is modified as indicated

This appeal is partly allowed in the aforesaid terms and is disposed
of as such.


JUNE 07, 2017

Crl.Appeal No.1147/2014 Page 5 of 5

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