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Vicky Sain vs State on 11 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A 35/2013
Reserved on : 31.01.2020
Date of Decision : 11.03.2020
IN THE MATTER OF:
VICKY SAIN ….. Appellant
Through: Mr.Sumeet Verma, Advocate.

versus
STATE ….. Respondent

Through: Dr.M.P.Singh, APP for State with
SI Sachin Yadav, P.S. Vikas Puri.

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present appeal is directed against the judgment dated
02.03.2012 whereby the appellant was convicted for the offence
punishable under Section 342 read with Sections 376 and 506 IPC,
arising out of FIR No.70/2007 registered under Sections
363/366/428/342/376/506/120-B IPC at P.S. Vikaspuri.

2. Vide order on sentence dated 15.03.2012, the appellant was
sentenced to RI for 10 years along with fine of Rs.50,000/- for the
offence punishable under Section 342 read with Section 376 IPC and in
default of payment of fine, the appellant was directed to undergo SI for 6
months. The fine amount was directed to be paid to the prosecutrix as
compensation in terms of Section 357 Cr.P.C. The appellant was also
sentenced to RI for 2 years along with fine of Rs.1,000/- for the offence
punishable under Section 506 IPC and in default of payment of fine, to

CRL.A 35/2013 Page 1 of 11
undergo SI for 15 days. The benefit of Section 428 Cr.P.C. was granted
to the appellant.

3. After completing the investigation, a charge-sheet was filed
against the appellant and his sister, Savitri. The appellant pleaded not
guilty and claimed trial. The prosecution, in support of its case, examined
total of 18 witnesses. The co-accused Savitri was acquitted by the Trial
Court.

MATERIAL WITNESSES

4. The prosecution examined Suman Khanna as PW-7 to prove the
age of the prosecutrix. The witness brought the admission register of the
school, according to which the date of birth of the prosecutrix was
mentioned as 21.09.1991. Relevant page of the admission register was
exhibited as Ex.PW-7/A. The witness also brought the original admission
form and original last school leaving certificate, copies of which were
exhibited as Ex.PW-7/B and PW-7/C respectively. The witness identified
the signatures of the then Vice Principal on the certificate dated
23.04.2007, certifying the date of birth of the prosecutrix as 21.09.1991.
The certificate was exhibited as Ex.PW-7/D.

5. The prosecutrix was examined as PW-1. She deposed that the
appellant used to reside on rent at the second floor of the same house and
the co-accused Savitri was the appellant’s sister. At the relevant time, the
prosecutrix was aged about 15 years and was studying in Class-IX. She
used to tutor the children of Savitri Devi. On 22.02.2007, the co-accused
Savitri Devi took the prosecutrix to her own house which was just behind
the house of the prosecutrix. As soon as the prosecutrix entered the
room, the co-accused bolted the room from outside. The appellant, who

CRL.A 35/2013 Page 2 of 11
was already present inside the room, made forcible sexual intercourse
with the prosecutrix against her wishes. On an alarm being raised by the
prosecutrix and seeing the people from the neighborhood gathered, the
co-accused opened the door from outside. Both the appellant and the co-
accused fled away from the spot. The prosecutrix narrated the incident to
her mother but could not narrate the same to her father. When her mother
told the incident to her father, the prosecutrix felt ashamed and on the
same night consumed Tezaab (acid), which caused burning sensation in
her food pipe and chest after which she became unconscious. She was
initially rushed to Surya Hospital and later to the DDU hospital, where
the police recorded her statement (Ex.PW-1/A). She also proved her
statement recorded under Section 164 Cr.P.C. She also stated that her
underwear was seized by the doctor at the time of preparing the MLC.

6. During her testimony, the prosecutrix identified appellant as well
as his co-accused in the Court.

7. In the cross-examination, she denied the suggestion that she was
aged 17-18 years. She stated that she knew the appellant as he used to
reside on the top floor. She denied the suggestion that no incident of
forcible intercourse occurred with her.

8. Mr.Y, father of the prosecutrix, was examined as PW-2. He
deposed that on 22.02.2007, the prosecutrix was aged about 15 years . He
heard cries of the prosecutrix at about 11:30 p.m. while he was sleeping.
He got up and found that the prosecutrix had consumed Tezaab and she
became unconscious. He stated that the appellant was arrested on
25.02.2007.

CRL.A 35/2013 Page 3 of 11

9. Ms.X, the mother of the prosecutrix was examined as PW-9A. She
deposed that in the year 2007, the prosecutrix was studying in class IX.
On 22.02.2007, she found the prosecutrix very quite and later, on her
asking, the prosecutrix told her about the incident. The witness was not
cross-examined by the appellant.

10. Aas Raj (PW-8) was examined to prove that while the prosecutrix
was staying at the ground floor, the appellant was residing at the second
floor of the same house. Sukhbir Tyagi (PW-16) was examined to prove
the house of the co-accused Savitri. He deposed that he was the owner of
the property and Savitri was living on rent.

MEDICAL EVIDENCE

11. Dr. Shashi Lata Kabra (PW-13) was examined to prove the MLC
of the prosecutrix prepared by Dr. Geetanjali, as Ex.PW-13/A. She
identified the handwriting and signatures of Dr.Geetanjali on the MLC.
The patient’s history showed ingestion of acid and the patient was having
history of vomiting with blood coming in vomitus. The prosecutrix had
given the history of sexual contact three times with her consent and her
hymen was found torn.

12. Dr. Arpita Gangwani (PW-14) proved the admission of the
prosecutrix in Ward No.9. Dr.Narender Solanki (PW-9) proved the MLC
of the appellant.

13. The remaining witnesses were police officials who deposed about
various steps taken during the investigation. ASI Ram Lal, who collected
the FSL report, exhibited the same as Ex.PW-17/B.

CRL.A 35/2013 Page 4 of 11

14. The learned M.M. was examined as PW-12 to prove the statement
of the prosecutrix recorded under Section 164 Cr.P.C.

15. Learned counsel for the appellant contended that the present case
is a case of consensual sex as is evident from the history given by the
prosecutrix at the time of her MLC. It was further contended that no
concrete proof of the age of the prosecutrix has come on record and even
otherwise being above 15 years of age, she was of the age of discretion.
In support, learned counsel for the appellant relied upon the decision of
Vijay Kumar v. State of NCT of Delhi in Crl. Appeal 325/2013 decided
on 14.08.2015. Lastly, it was submitted that grave prejudice has been
caused as some of the prosecution witnesses, namely, PW-7, 8, 9A, 13
16 were not cross-examined on behalf of the appellant.

16. On the other hand, learned APP for the State has supported the
impugned judgment. It was submitted that the prosecutrix was a minor at
the date of the incident.

17. I have heard learned counsels for the parties and gone through the
case records.

18. The prosecution has proved the age of the prosecutrix through the
testimony of Suman Khanna, who proved all the relevant school records,
i.e., admission register, last school leaving certificate, certificate issued
by the earlier Vice Principal, according to which the date of birth of the
prosecutrix is 21.09.1991. The prosecutrix as well as her mother and
father have also stated that she was born on the aforesaid date and at the
relevant time, was studying in class-IX. The prosecutrix denied the
suggestion that her date of birth in the school certificate was wrongly
mentioned by her parents to secure admission and that she was between

CRL.A 35/2013 Page 5 of 11
16-17 years of age at the time of the incident. On the basis of the oral
testimony and the material evidence placed on record, this Court is of the
view that the prosecutrix was a minor less than 16 years of age on the
date of the incident.

19. It is a trite law that the sole testimony of a prosecutrix can be the
basis for conviction provided the same is trustworthy and credible.
[Refer: State of Punjab v. Gurmit Singh and Ors reported as (1996) 2
SCC 384 and State of Himachal Pradesh v. Manga Singh reported as
2018 SCC OnLine SC 2886].

20. Coming to the contention of learned counsel for the appellant that
the prosecutrix being in the age of discretion was a consenting party, in
catena of decisions, it has been held that the consent of a minor is of no
consequence. [Ref: Jarnail Singh v. State of Haryana reported as AIR
2013 SC 3467; Lillu and Ors. v. State of Haryana reported as AIR 2013
SC 1784]

21. The reliance on the decision in Vijay Kumar (Supra) by the
learned counsel for the appellant to contend that the prosecutrix was of
the age of discretion, is misplaced. In the captioned case, the prosecutrix
had gone with the accused and stayed with him for 8-9 days. The court
came to the conclusion that the victim accompanied the accused willfully
and voluntarily, which is not the fact in the present case.

22. So far as contention of learned counsel for the appellant that some
of the prosecution witnesses were not cross-examined is concerned, it is
noted that opportunity of cross-examination was granted, but the same
was not availed by the appellant.

CRL.A 35/2013 Page 6 of 11

23. The Trial Court observed that the statement of the prosecutrix
under Section 164 Cr.P.C. could be recorded after two months, as she
was undergoing treatment. A perusal of the statements of the prosecutrix
recorded during investigation as well as her testimony would show that
she has consistently stated about her age, her going to the house of
Savitri on 22.02.2007 where the appellant committed forcible sexual
intercourse with her against her wishes and that she was also threatened
by the appellant with dire consequences to not to disclose the said
incident to anyone. She also consistently stated that on account of fear
and shame, she voluntarily consumed the acid. Accordingly, this Court
is of the view that the testimony of the prosecutrix is both credible and
trustworthy.

24. In view of the above discussions, I do not find any substance in the
contentions of learned counsel for the appellant. The judgment on
conviction passed by the trial court is upheld.

25. Learned counsel for the appellant has submitted that the incident
relates to the year 2007, at which time the appellant was aged about 18
years. He submitted that it has come in the testimony of PW-13 that the
prosecutrix had given history of sexual contact three times with her
consent with the present appellant. He also submitted that he has clean
past record and his jail conduct has also been found to be satisfactory. It
was further submitted that he has a widowed mother, brother and sister to
look after. It was further urged that the appellant be granted relief under
the proviso to Section 376 IPC and the sentence be reduced to the period
undergone. In support, he has relied upon the decisions of Supreme Court
in Nehnu Ram @ Narendra v. State of Rajasthan Anr. in Crl. Appeal

CRL.A 35/2013 Page 7 of 11
No.320 of 2019 decided on 20.02.2019 and the decisions of Coordinate
Benches of this Court in Mohd. Anwar v. State reported as 2019 (3) JCC
1766, Maan Singh (supra) in Crl. Appeal No.1528/2011 decided on
05.11.2015.

26. The offence in the present case relates to the year 2007 i.e., prior
to The Criminal Law (Amendment) Act of 2013. As per the status on the
relevant date, the offence punishable under Section 376 IPC provided
that the offence of rape of woman under 16 years of age with or without
her consent was punishable with imprisonment not less than 7 years
which may extend for life or for a term which may extend to 10 years
along with payment of fine. The proviso to the Section further provides
that the court, for adequate and special reasons to be mentioned in the
judgment, may impose a sentence of imprisonment less than 7 years.

27. Recently, in Thongam Tarun Singh v. State of Manipur reported as
2019 SCC OnLine SC 709, the Supreme Court held as follows:-

“11. So far as quantum of sentence is concerned,
Section 376 IPC-punishment for rape has been
amended by Act 13 of 2013 (with retrospective effect
from 03.02.2013). As per the amended section, the
minimum sentence of seven years is provided for the
offence of rape which may extend to imprisonment for
life. After the amendment, no discretion is vested with
the Court to reduce the sentence. Prior to the
amendment (Amendment Act 13 of 2013) for the
punishment under Section 376(2)(g) IPC, it provided
for rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and
shall also be liable to fine. Prior to the amendment
(Amendment Act 13 of 2013) by the proviso to Section
376(2) IPC, the Court has been vested with the
discretion that for adequate and special reasons to be

CRL.A 35/2013 Page 8 of 11
mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less
than ten years.

12. The question falling for consideration is whether
there are adequate and special reasons warranting
exercise of discretion to reduce the sentence of
imprisonment. What is ‘adequate and special reasons’
would depend upon several factors and no strait-jacket
formula can be imposed. No catalogue can be
prescribed for adequacy of reasons nor instances can
be cited regarding special reasons. They differ from
case to case.

13. It is stated that at the time of occurrence, appellant
no. 1 was working as a police driver and appellant no.
2 was a singer having good reputation, performing as
a singer on the stage and both the appellants were
aged about 24-25 years, at the time of the occurrence.
It is also stated that both the appellants have no
criminal antecedents and they hail from backward
area. Learned counsel for the appellants have also
produced certificate issued from the Jail Authorities to
show that the conduct of the appellants (post
conviction) are very good and satisfactory and they
have been participating in the sports/garden activities
and other programmes of the Jail. Considering the
facts and circumstances of the case and that the
appellants have no criminal antecedents and also the
conduct of the appellants in the Jail (post conviction),
the sentence of imprisonment of fifteen years (for the
conviction under Section 376(2)(g) IPC) and sentence
of imprisonment of ten years (for the conviction under
Section 120B IPC) are reduced to eight years.”

28. In Nehnu Ram (Supra), while relying on the decisions in Ram
Kumar v. State of Haryana reported as (2006) 4 SCC 347 and Raj Kumar
Vs. State of Bihar reported as (2006) 9 SCC 589, the Supreme Court
held as under:-

CRL.A 35/2013 Page 9 of 11

“The present is a case where the provision of Section
376(1) proviso as it existed at the time of incident was
available and not a case where minimum sentence
prescribed under proviso to Section 376(1) of seven
years cannot be reduced on adequate and special
reasons found and therefore the sentence of seven
years can be reduced as is statutorily provided.
Now, we come back to special reasons which have
been placed before us. The incident took place about
30 years ago. At the time of incident, the appellant was
22 years of age and the prosecutrix was between 15-16
years. It has been stated by learned counsel on behalf
of the appellant that the appellant is married and has
three daughters whereas the prosecutrix is also
married and has husband and kids. As noted above,
this Court has already passed an order directing the
State to obtain instructions on criminal antecedents of
the appellant. It has been stated by learned counsel for
the State before us that there are no criminal
antecedents of the appellant.

Looking into the facts and circumstances of the case
that incident took place 30 years ago, that both the
appellant and the prosecutrix having married (not with
each other) and settled in life and the appellant having
already undergone the sentence of one year and seven
months, we are of the view that ends of justice would
be served in reducing the sentence to the sentence
already undergone.

We, thus, confirm the conviction of the appellant under
Section 376 and by invoking proviso to Section 376(1)
reduce the sentence to the sentence already
undergone.”

29. As per the nominal roll, the appellant has undergone sentence of 6
years and 24 days. In view of the mitigating circumstances pleaded by
learned counsel for the appellant that the incident took place 13 years ago
in the year 2007 i.e., prior to the amendment which was brought in force

CRL.A 35/2013 Page 10 of 11
in the year 2013; that the appellant was 18 years of age at the time of the
incident; that as per the MLC, the prosecutrix had consensual sex with
the appellant three times and also that the appellant has to look after his
family compromising of his widowed mother, brother and sister, the
order of sentence is modified and the appellant’s sentence is reduced to
the period already undergone however, the same the shall be subject to
the payment of fine of Rs.51,000/- out of which Rs.50,000/- shall be paid
to the prosecutrix as compensation amount as directed by the trial court.
In case, the fine amount is not paid, the appellant shall undergo the
default sentence. The fine amount shall be paid within eight weeks from
the date of passing of this judgment.

30. A copy of this order be communicated to the trial court to ensure
compliance.

(MANOJ KUMAR OHRI)
JUDGE

MARCH 11, 2020
‘dc’

CRL.A 35/2013 Page 11 of 11

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