Chander Pal vs State

Pradeep Nandrajog, J.—Noting that Mr. Sumeet Verma Advocate has been nominated by the Delhi High Court Legal Services Committee to represent the appellant, we fix his fee at Rs. 5,500/-.

Heard learned Counsel for the parties.

Vide impugned judgment and order dated 3.2.2004, the appellant has been convicted for the offence of having raped Kumari ''N'' on 4.8.2002 when her mother had awoken from the slumber and had gone inside the room leaving Kumari ''N'' sleeping on a cot in the verandah outside.

The appellant was a tenant in a room in the same building in which Kumari ''N'' s father had taken a room on rent.

Vide order on sentence dated 6.2.2004, noting that Kumari ''N'' was a tender girl aged 10 years, the learned Trial Judge has inflicted the maximum sentence prescribed u/s 376(2)(f) IP C i.e. to undergo imprisonment for life and to pay a fine of Rs. 30,000/-; in default of payment of fine to undergo simple imprisonment for 3 years.

It is not in dispute that the FIR in question was registered belatedly on 11.8.2002.

The contemporaneous events which took place on 4.8.2002 are that around 6:00 in the morning, the parents of Kumari ''N'' noted their daughter bleeding from the vagina. As recorded in Ex.PW-6/D, the OPD card of the ESI Hospital Basai Dara Pur New Delhi, Kumari ''N'' had to be given surgical intervention to stitch a tear in the vagina inasmuch as the physical examination conducted by the doctor on duty revealed a tear in the labia minor, extending deep.

The young girl informed, as recorded in Ex.PW-6/D, that she had sustained the injury due to fall in the bathroom; a fact which was obviously incorrect for the reason the injury sustained by the young girl could never have been the result of a fall. It had to be the result of either a forcible sexual intercourse or somebody piercing a blunt object inside the vagina of the young unfortunate girl.

Either the young girl got encouraged, or somebody coaxed her to speak the truth. She did so, but only on 11.8.2002. She told her parents that when her mother had left the cot in the morning and she was sleeping on the cot she found the appellant forcing himself on her and after removing her and his undergarments, committed rape upon her.

Kumari N''s father Shambhu Giri PW-2 immediately took the young girl to the police station where her statement Ex.PW-1/A was recorded and based thereon the FIR Ex.PW-3/A was registered.

Kumari ''N'' was taken to DDU Hospital for a medico legal examination at 1:40 PM on 11.8.2002. The MLC Ex.PW-4/A notes that there was no external bleeding but a tear was present on the labia minor (inner aspect). It was further noted that there were no external injuries. The gynecologist noted that the hymen was torn and there were perineal stitches in the vagina.

The appellant was apprehended on 11.8.2002. His medical examination was conducted and as recorded in the MLC Ex.PW-5/A it was opined that the appellant was capable of performing sex.

Kumari ''N'' was examined as PW-1. She deposed that on the 4th of August (year she did not remember) she was sleeping on the cot in the verandah and the accused came there. After removing her and his undergarments, committed rape upon her and at that point he had pressed her mouth. She stated that the incident took place in the morning at around 5/5:30 AM. She was taken to a medical hospital where she remained admitted for 3/4 days.

Kumari ''N'' was cross examined. The thrust of the cross examination appears to be to test the memory of the young girl. She was question as to where she was residing. She was questioned with reference to the topology of her house and the number of persons staying in the house. She was questioned as to where she and her other family members used to sleep. She was questioned where Vijay, son of the landlord used to sleep. We note that she answered the questions with candour expected from a child aged 11 years (the age when the young child was examined in Court).

Not being able to demolish the testimony of the young victim, a suggestion was given to her that she was tutored by her parents and that her parents and the IO were in fact wanting to save Vijay, the son of the landlord or to grab money from the parents of the accused; suggestions which were denied by the young girl.

Shambhu Giri PW-2, the father of the young girl deposed that on 4.8.2002 at around 8:00 AM he was present in the house and was taking tea. He saw his daughter bleeding and took her to ESI Hospital where she remained for 3 days. He stated that he made enquiries from her and she disclosed to him on 11.8.2002 that Chander Pal had raped her at which he immediately reported the matter to the police.

Shambhu Giri has been cross examined. We find not a suggestion given to him that he had got lodged a false case against the accused or that he was wanting to extract any money, much less Rs. 50,000/- from the accused.

SI Ravi Shankar PW-7, the IO deposed facts relating to the investigation conducted by him, which we note is restricted to seizing the medical record of Kumari ''N'' when she was treated at ESI Hospital and thereafter getting her examined at DDU Hospital.

Suffice would it be to note that no suggestion has been given to SI Ravi Shankar that he was instrumental in lodging a false case against the appellant.

Thus, the defence of false implication must fail.

The only question which needs to be considered is whether Kumari ''N'' needs to be believed.

A rape victim is not an accomplice. It is settled law that the testimony of a rape witness has to be treated at par with the testimony of an injured victim. Even uncorroborated testimony of a rape victim has to be accepted if it passes the test of clarity and inspires the judicial conscious of the Court.

That Kumari ''N'' was raped is evidenced from her MLC Ex.PW-4/A as also the OPD card Ex.PW-6/D. Who raped her has surfaced from her mouth. We see no reason why Kumari ''N'' would be falsely implicating the appellant. We further note that Shambhu Giri PW-2, the father of the young victim has deposed that after his daughter was discharged from the ESI Hospital, in the house, she disclosed to him that Chander Pal had raped her. Said testimony of Shambhu Giri has gone unchallenged during cross examination.

We concur with the view taken by the learned Trial Judge that the evidence on record establishes that the appellant committed rape upon Kumari ''N'' who was aged between 10 to 11 years when the offence took place.

On the issue of sentence, we notice, as in the instant case, in cases of child rape, mechanically sentence of imprisonment for life is being imposed by most Trial Judges.

In a decision dated 23.3.2009 in Crl. A. No. 335/2005 Prabhu Nath v. State decided by a Division Bench of this Court, pertaining to a child victim aged 8 years and the accused being between 19 to 20 years, sentence of imprisonment for life was converted into a sentence to undergo rigorous imprisonment for 10 years.

Decisions on the subject were noted. The view taken (containing the reasoning therein), is as under:

In the decision reported as Ediga Anamma Vs. State of Andhra Pradesh, it was opined that the young age of an offender is a mitigating factor while considering the quantum of sentence. The reason is obvious. A person is immature in his youth; meaning thereby the person cannot form a rational decision with respect to the culpability of his conduct, of course he knows that what he is doing is wrong. We have our doubt whether good conduct in jail is a mitigating factor. We find no precedent to support the same. Post offence conduct of remorse being shown by the accused is a mitigating factor as observed in the decision reported as Re. Rock 2008 All E.R. 290. The helplessness of the victim and that the victim is vulnerable i.e. a child being the victim is an aggravating circumstance on the quantum of sentence.

The penal code prescribes the maximum punishment for rape as imprisonment for life. Thus, the legislative intent is that in extreme cases of rape sentence to be imposed should be of imprisonment for life. Obviously, in cases less than the extreme, the sentence has to be less. What would be the instances of extreme cases of rape? First and foremost would be the acts of brutality which may accompany a rape. The second would be the trauma inflicted, other than the trauma of rape, for example where the rape victim is beaten or threatened with death, is battered etc. The third would be where the offender is in a dominating position and breaches the confidence of a victim for example, in near relation of the victim being the offender.

Lack of previous criminal record is also a mitigating factor.

Noting that the appellant has no previous criminal record and was aged about 19 - 20 years at the time of the crime being committed, we are of the opinion that the sentence of imprisonment for life imposed upon the appellant needs to be reduced to rigorous imprisonment for 10 years.

In the decision reported as 2006 (1) JCC 404 Jagdish v. State, the prosecutrix was aged 11 years and the accused was a youth aged 19 years. Sentence to undergo imprisonment for life was reduced to 10 years and a fine of Rs. 30,000/-; in default of payment of fine to undergo simple imprisonment for one year. In the decision reported as Virender Nanda @ Dimple Vs. State, , the prosecutrix was aged 6 years and the accused was a youth, but age not recorded. Sentence to undergo imprisonment for life was reduced to 10 years and a fine of Rs. 10,000/-; in default of payment of fine to undergo simple imprisonment for two years.

In the instant case, the age of the appellant is 26 years as on the date of the incident. Save and except that the victim was a child, no other aggravating factors are noted. Thus, we are of the opinion that instant case also requires corrective sentencing action to be taken in appeal.

We dispose of the appeal affirming the conviction but modifying the sentence imposed upon the appellant directing that the appellant shall undergo rigorous imprisonment for a period of 10 years and shall pay a fine as directed to be paid by the learned Trial Judge with modification that in default of payment of fine he shall undergo simple imprisonment for 6 months.

Copy of this order be sent to the Superintendent Central Jail Tihar for necessary action.