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Om Prakash vs State on 21 August, 2018

$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 21.08.2018

% CRL.A. 430/2018
OM PRAKASH ….. Appellant
Through: Ms. Saahila Lamba, Advocate
versus
STATE ….. Respondent
Through: Mr. Rajat Katyal, APP with SI Sonu,
PS Seemapuri
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE I. S. MEHTA

VIPIN SANGHI, J. (ORAL)

1. The appellant has preferred the present appeal to assail the judgment
rendered by the learned ASJ-01/Special Judge (POCSO), Shahdara District,
Karkardooma Courts, Delhi in SC No.70/2016 arising out of FIR 460/2013
under Section 363/376(2)(i)/506 IPC and Section 5(m)/6 of POCSO Act
registered at P.S. Seemapuri, whereby the appellant stands convicted of the
charge framed against him. The appellant also assails the order on sentence
dated 29.01.2018 passed by the learned ASJ. The maximum punishment
awarded to the appellant is rigorous imprisonment for life, which shall mean
imprisonment for the remainder of his life, for the offence punishable under
Section 376(2)(i) IPC with fine of Rs.25,000/-. In default of payment of
fine, he has been directed to undergo further simple imprisonment for a
period of six months. The fine, if recovered, is payable to the victim.

2. The case of the prosecution is taken note of in the impugned judgment

CRL.A. 430/2018 Page 1 of 8
itself. The same reads as follows:

“1. Accused Om Prakash was sent up for trial by the police
of PS Seemapuri for the offences punishable under Section
363/376 (2)(i)/506 of Indian Penal Code, 1860 (herein after
referred to as “IPC” in short) and under S. 5(m) / 6 of
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as “POCSO” in short) on the
allegations that on 31.08.2013 at about 10:00 p.m., Smt. Rekha
along with her husband and daughter came to police station
and reported to duty officer that at around 1:00 p.m. when
school got off, one TSR driver took her daughter (name
withheld) 9 years old/ victim, who was studying in 3rd class, in
his TSR from 70 Foota Road. Police officer of PP Tulshi
Niketan informed that her daughter is at PP Tulshi Niketan and
after that she took her daughter from PP to her home. At home
her daughter told that TSR driver did “Galat Kaam with her”.
On that duty officer has informed SHO and lodged DD entry
vide DD No.38A dt. 31.8.2013 and sent the prosecutrix for
medical examination to GTB Hospital alongiwth W/Ct. Pramila
and IO was also informed about the DD Entry. Victim girl
child was medically examined with alleged history of rape by
autorickshaw driver wherein she gave history that
autorickshaw was picking her up from outside school at 1:00
p.m. on 31.08.2013 and took her to deserted area, behind,
where he started taking off her clothe, panty and when she
resisted, he warns her of killing with knife if she shouted. Then
he raped her, intercourse was done. After which he took her to
petrol pump (nearby) and arranged one auto for her and told
her not to disclose to anyone. She was then dropped to home.
History of bathing at home. Hymen torn, inflamed and bruises
were noted”.

3. The age of the prosecutrix being 9 years on the date of the incident i.e.
31.08.2013 is established. The conviction of the appellant is premised on
the testimony of prosecutrix, who was examined as PW-1; the testimony of
PW-4 Shakir Malik, who was an auto driver; on the corroborative scientific

CRL.A. 430/2018 Page 2 of 8
evidence, namely, MLC of the prosecutrix (Ex. PW-2/A), which found the
hymen of the victim torn, and; the FSL report (Ex. PW-14/A), wherein the
DNA of the accused was found in the vaginal swab as well as on the skirt
and underwear of the prosecutrix.

4. The submission of learned counsel for the appellant, firstly, is that the
prosecutrix had failed to identify the accused when the accused was
produced before the court.

5. We do not find any merit in this submission for the reason that, firstly,
the prosecutrix was 9 years of age at the time when the incident took place
on 31.08.2013, and about 11 years of age when she was examined on
01.08.2015. The examination of the prosecutrix before the court took place
nearly two years after the date of the incident. Thus, it was natural to expect
that her memory may have faded in the said period. Moreover, when PW1
was cross examined on 03.11.2015 the court made the observation that she
appeared to be too terrified, and she was speaking very slowly at a very low
pitch. Thus, the possibility of the prosecutrix not identifying the accused,
out of fear cannot be ruled out.

6. Secondly, the accused was identified by PW-4 Shakir Malik, who was
also an auto driver and he testified that it was the accused who handed over
the prosecutrix to him along with the money, to drop her at her residence.
PW4 had taken the prosecutrix to the police post and had also called the
parents of the prosecutrix to the police post. Thus, the accused was duly
identified by PW-4.

7. Thirdly, the prosecutrix while recording her statement under Section

CRL.A. 430/2018 Page 3 of 8
161 Cr PC (Ex. PW-1/DA) gave a detailed description of the auto rickshaw
of the accused wherein the offence was committed. The same description
was repeated by her while recording her statement under Section 164 Cr PC
(Ex. PW-1/A) before the learned Magistrate. On the basis of the said
description, the police party conducted search and found the auto rickshaw
parked in front of a tea stall at toll tax, Bhopura. In this respect, the
statements of PW-11 ASI Mursalin Khan and PW-12 ASI Sarvesh Kumar
may be referred to. The owner of the auto rickshaw Babu Lal was called,
who disclosed that the said auto rickshaw was on hire till 31.08.2013 with
the accused Om Prakash. Babu Lal could not be examined since he had
passed away. However, as noticed herein above, PW-4 duly identified the
accused as the person who had handed over the prosecutrix to him along
with the money for being dropped to her residence. Pertinently, the
prosecutrix in her cross examination was emphatic that she identified the
auto rickshaw in question on the basis of the baskets installed therein. She
was also shown the photographs of the auto rickshaw during her
examination, and she affirmed that they were of the auto rickshaw wherein
the crime was committed.

8. Fourthly, the scientific evidence clearly establishes that it was the
accused who was driving the auto rickshaw in question and who had
committed rape upon the prosecutrix, since his DNA was found in the semen
collected from the vaginal swab, as well as from the skirt and underwear of
the prosecutrix. He has not explained this incriminating circumstance. He
simply claimed implantation of samples, but did not state why he would be
falsely implicated by the prosecutrix and her family members.

CRL.A. 430/2018 Page 4 of 8

9. Thus, in our view, there is no merit in the submission of learned
counsel for the appellant that the identity of the perpetrator of the crime was
in doubt. In the present case, the evidence brought on record by the
prosecution, in our view, was sufficient to find the appellant guilty of the
offence of which he was charged. The testimony of the prosecutrix was
credible and was duly corroborated by the other evidence taken note of
herein above. The conviction of the appellant is, thus, upheld.

10. Learned counsel for the appellant has contended that the sentence
awarded to the appellant by the learned Trial Court is harsh considering the
circumstance of the appellant. Learned counsel submits that the appellant is
42 years of age with a family of four minor children and a wife. He is the
only sole breadwinner of the family and he comes from a poor background.
The appellant had no other criminal past.

11. Learned counsel further submits that though the offence of rape of a
minor child itself is reprehensible, there was no brutality exercised by the
appellant in the commission of the crime itself. The prosecutrix had not
suffered any other injury on her body in the commission of the offence.

12. Learned counsel has drawn our attention to a decision of the Division
Bench of this Court in Beeru v. State NCT of Delhi, Crl. A. No.1079/2010
decided on 11.12.2013. In this decision, the Division Bench referred to
Section 376 IPC pre-amended (the amendment having been brought into
force by Act 13/2013 with effect from 03.02.2013). The Division Bench
observed that the legislative intent was to impose the punishment of
imprisonment for life in extreme cases of rape and, consequently, in cases of

CRL.A. 430/2018 Page 5 of 8
less severity, the sentence has to be less severe. Whether the sentence
should be of imprisonment for life, or otherwise, is left to the judicial
prudence of the Judge. Reference was made to State of Rajasthan vs. Vinod
Kumar, AIR 201 SC 2301, where the Supreme Court had observed:

“The measure of punishment in a case of rape cannot depend
upon the social status of the victim or the accused. It must
depend upon the conduct of the accused, the state and age of
the sexually assaulted female and the gravity of the criminal
act. Crimes of violence upon women need to be severely dealt
with. The socio-economic status, religion, race, caste or creed
of the accused or the victim are irrelevant considerations in
sentencing policy. Protection of society and deterring the
criminal is the avowed object of law and that is required”.

13. Reference was also made to a Division Bench judgment of this Court
in Khem Chand v. State of Delhi, ILR (2008) Supp. (5) Delhi 92, wherein
the following parameters were laid down for assessing the quantum of
punishment in cases of rape upon a child:

“ Criminal and the crime are both important for the purposes
of sentence.

 Manner of commission of the crime being with meticulous
planning or one on the spur of the moment;

 Violence, If any, accompanying the crime whether injuries
suffered were serious and required extensive treatment or have
caused any permanent damage to the child bearing capacity or
otherwise;

 Whether the offender or accused was in a position of fiduciary
trust or exploited a social or family relationship;

 State of the victim, impact of the crime on the victim,

CRL.A. 430/2018 Page 6 of 8
 The antecedents of the accused, his age, whether a first time
offender or repeat offender, possibility of recidivism.

 Social backwardness or offender being a poor, illiterate
labourer not found to be adequate reason by Courts.

 Passage of time since offence committed by itself considered
inadequate reasons for reprieve.

 Rape victim’s marriage or rehabilitation may be considered
as a mitigating factor”.

The Division Bench also took note of couple of instances where the
child had been raped by a close relative, and in another case where the child
had been raped by the school teacher.

14. In Beeru (supra), the Court reduced the sentence from life
imprisonment to rigorous imprisonment for a period of 10 years while
maintaining the conviction of the appellant.

15. Mr. Katyal, the learned APP submits by reference to Section 375 IPC
that several acts constitute rape, and penetration of the penis into the vagina
of the prosecutrix is the most severe form of rape. Thus, he submits that the
sentence of the appellant should be determined in the light of this
circumstance. Moreover, the appellant had taken away the prosecutrix – a 9
year old minor girl, on the pretext of dropping her to her residence and
thereafter committed rape upon her after driving his auto rickshaw into a
bush. The appellant had threatened the prosecutrix with a knife while
committing the said act. She has suffered depression due to her horrific
experience at the hands of the appellant and was undergoing treatment for
the same, as stated by her.

CRL.A. 430/2018 Page 7 of 8

16. Having considered the rival submissions on the aspect of sentence,
and taking into account the circumstances pointed out by ld. Counsel for the
appellant and by the ld. APP, we are of the considered view that interest of
justice would be met in the facts and circumstances of the case, if the
sentence of the appellant is reduced from imprisonment for the rest of his
life to a substantive sentence of 16 years rigorous imprisonment i.e. rigorous
imprisonment for actual 16 years, without remissions. While the appellant
did not resort to brutality, de did threaten the prosecutrix with a knife and
made her the object of his lust. The victim/ prosecutrix has been scarred for
life. She is living the trauma, as she was undergoing treatment for
depression even when she was examined on 03.11.2015 i.e., nearly 26
months after the incident. So far as the fine imposed upon the appellant is
concerned, the same is maintained. In case of default of payment of fine, he
shall undergo simple imprisonment for a further period of 6 months. The
sentence qua the other offences for which the appellant stands convicted
remains unaltered. He shall be entitled to benefit of Section 428 Cr.P.C. All
the sentences shall run concurrently.

17. The appeal stands disposed of in the aforesaid terms.

VIPIN SANGHI, J

I.S.MEHTA, J
AUGUST 21, 2018
sr

CRL.A. 430/2018 Page 8 of 8

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