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Raj Kishor vs State (Govt Of Delhi) on 12 March, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 05.3.2018
Judgment delivered on:12.3.2018

+ CRL.A. 1054/2013
RAJ KISHOR ….. Appellant
Through Ms.Sunita Arora, Advocate

versus

STATE (GOVT OF DELHI)
….. Respondent
Through Mr.Amit Ahlawat, APP with SI
Ramesh Kumar.

CORAM:
HON’BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order on

sentence dated 06.5.2013 and 10.5.2013 respectively wherein the appellant

stood convicted under Section 376 of the IPC. He had been sentenced to

undergo RI for a period of 10 years and to pay a fine of Rs.10,000/- in

default of payment of fine to undergo RI for a period of 2 years.

2 Learned counsel for the appellant at the outset under instructions from

her client (present in Court) submits that she is not pressing his conviction

but having regard to the fact that the appellant has undergone incarceration

Crl.A. 1054/2013 Page 1 of 7
of almost 7 years; the sentence of RI 10 years be reduced to the period

already undergone. Attention has been drawn to the order dated 04.5.2017

wherein this fact stood mentioned. Attention has also been drawn to the

earlier order sheets which disclose that the application of the appellant

seeking suspension of his substantive sentence had been allowed in his

favour on 13.8.2015. The appellant could not arrange for a surety; he had

filed repeated applications seeking reduction of his surety amount. The

surety amount was reduced from Rs.50,000/- to Rs.15,000/-. He could avail

of bail order only on 12.5.2017 when he was released from the jail. The

report of the Jail Superintendant to the said effect is on record.

3 The nominal roll of the appellant reflects that as on 12.5.2017 (date of

his release) he had undergone incarceration of about 6 years and 7 months

which included the remissions earned by him. His jail conduct was

satisfactory.

4 Learned counsel for the appellant has drawn attention of this Court to

Section 376 of the IPC. It is pointed out that the prosecutrix in this case was

an adult; she was admittedly 20 years of age; she was known to the

appellant; the offence had occurred in broad day light. The clothes of the

victim were not torn. The FSL report had not supported the version of the

Crl.A. 1054/2013 Page 2 of 7
prosecution. No semen stains were found upon her under-garments or her

private parts; no injury was noted upon her person. Attention has been

drawn to that part of the testimony of PW-1 where in her examination-in-

chief she did not speak of any physical relation of herself with the appellant;

this information was elicited only in the cross-examination by the learned

APP for the State. It is additionally pointed out that the appellant had

suffered incarceration (as noted supra) of 6 years and 7 months.

5 This Court notes that while hearing arguments on sentence, the Trial

Judge had noted that the appellant is a married man and had a 13 year old

son at that time; he would be still in his teens; he has his mother to look after

and his father had since expired; his wife was a household lady; the appellant

was the only bread earner in the family. This was his first offence. He

otherwise had clean antecedents; his conduct during trial was cooperative.

These were the factors which have been brought to the notice of the Trial

Judge. Today before this Court the counsel for the appellant is seeking a

reduction in the sentence and the same position is reiterated. Learned

counsel for the appellant has additionally relied upon the legislative

provision of Section 376 of the IPC; emphasis has been laid on the proviso.

Submission is that in appropriate cases for just and adequate reasons the

Crl.A. 1054/2013 Page 3 of 7
minimum sentence of 7 years RI may be reduced.

6 Per contra learned counsel for the State submits that the minimum

sentence of 7 years cannot be altered. The Trial Judge had rightly awarded

the sentence of 10 years. It is further submitted that this crime is a crime

against the society and not an individual crime. The conviction has not been

opposed on merits; on sentence the impugned order suffers from no

infirmity; no interference is called for.

7 Arguments have been heard.

8 Record shows that PW-1 was the star witness of the prosecution; she

was a lady aged 20 years was known to the appellant; they were living in the

same neighbourhood. As rightly pointed out by the learned counsel for the

appellant in her examination-in-chief she had not spoken a word about any

physical relation of herself with the appellant. This was elicited in her cross-

examination. No injury was found upon her person. The FSL had not

supported the version of the prosecution. Semen was not detected upon her

under-garments or on her private parts.

9 PW-2 was the mother of the prosecutrix. She has also admitted that

the parties were known to one another. The appellant had in fact promised to

marry her daughter and on that pretext only the victim and the appellant used

Crl.A. 1054/2013 Page 4 of 7
to go out together. However, he being a married man was not disclosed to

the victim and this was why he had intentionally wriggled out of his promise

to marry her daughter. She denied the suggestion that the appellant has been

falsely implicated.

10 These were the star witnesses of the prosecution. This Court notes

that the merits of the conviction are not in dispute. Conviction of the

appellant under Section 376 is accordingly sustained.

11 On the point of sentence this Court notes that rape is undoubtedly an

offence against the society; it is not an individual crime. The object of

sentencing is to protect the society and deter individuals from committing

such offences; the sentence which is imposed must commensurate with the

nature of the offence and the manner in which the offence has been

committed; while taking into account the aggravating and mitigating factors

and circumstances of the crime, the sentence should be appropriate and in

proportion to the crime committed. Criminal law adheres in general to the

principle of proportionality allowing some significant discretion to the courts

in arriving at a sentence depending upon the special facts of each case.

12 The proviso to Section 376 enables the Courts to impose a sentence of

imprisonment less than the prescribed minimum for “adequate and special

Crl.A. 1054/2013 Page 5 of 7
reasons”. What is an adequate and a special reason would depend upon a

variety of factors and the peculiar facts and circumstances of each case.

There exists no strait-jacket formula for universal application. In Ram

Kumar Vs.State of Haryana reported as (2006) 4 SCC 347 wherein sufficient

evidence was tendered by the prosecution to prove the guilt of the accused,

the Apex Court, however, while considering the peculiar facts and

circumstances of the case that the victim had got married and was living with

her husband, had modified the sentence and reduced it to 3 years. In

Ravindra Vs. State of Madya Pradesh report as (2015) 4 SCC 491 the Apex

Court found it a fit case for invoking the proviso to Section 376; the incident

being 20 years old, also the fact that the parties had since been married (not

to each other) and that a compromise having been entered into were

considered as “adequate and special reasons” under the proviso. In State Vs.

Mange Ram AIR 2000 SC 2798 where the prosecutrix and the accused were

related and both were teenagers and evidence indicating no marks of

violence at all on any part of the body of the prosecutrix and also considering

that the incident had happened in 1993, the Apex Court had held that the

sentence of less than 7 years already undergone by the accused would be

sufficient to meet the ends of justice.

Crl.A. 1054/2013 Page 6 of 7
13 In the light of the aforenoted discussion and the facts and

circumstances of the instant case (as noted supra) this is a fit case for

invoking the proviso to Section 376 of the IPC. The offence having taken

place in the year 2011, the prosecturix being 20 years of age at the time of

the commission of the offence; no injuries having been found upon her

person, the appellant being known to her and being a married man having a

13 year old son at that time, this being his first offence and he being the only

bread earner in his family, would qualify as adequate and special reasons to

enable the appellant to avail of the benefit of this proviso.

14 The nominal roll of the appellant (supra) reflects that as on the date

when he had been granted bail he had undergone incarceration of 6 years and

7 months. Accordingly, this Court is of the view that the sentence already

suffered by the appellant be the sentence imposed upon him. The fine of

Rs.10,000/- remains unaltered. He is directed to pay the fine amount within

three weeks; in default of payment of fine he shall undergo SI for a period of

one month.

15 Appeal disposed of in the above terms.

INDERMEET KAUR, J
MARCH 12, 2018
ndn

Crl.A. 1054/2013 Page 7 of 7

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