Prabhu Nath vs State

Pradeep Nandrajog, J.

Crl.M.(B.) No. 305/2009

Application seeking suspension of sentence is listed today for hearing. Learned Counsel for the appellant states that if the appeal itself is heard he does not press the application seeking bail.

Both counsel agree that the appeal be heard right now.

Application for bail is disposed of as infructuous.

Crl. Appeal No. 335/2005

Noting that Mr. Sumeet Verma, Advocate is appearing as an Amicus Curiae nominated by the Delhi High Court Legal Services Committee we fix his fee at Rs. 5,000/-.

It is not in dispute, and indeed said fact has not been challenged, that the appellant was apprehended at the spot and along with the prosecutrix was sent for medical examination and as per MLC Ex.PW-3/B blood was found on his glans penis. It is also not in dispute that the underwear of the prosecutrix was found stained with blood. It is also not in dispute that the prosecutrix was aged about 8 years. The report Ex.PW-13/F shows that the vaginal swab of the prosecutrix was detected with semen. As per report Ex.PW- 13/G the swab of blood lifted from the glans penis of the appellant was detected with human blood, group whereof could not be ascertained.

Manwati PW-1 is the witness for the prosecution who has proved that the appellant was a tenant under her and at around 8.00 PM on the day of the incident she heard cries of her daughter. The same were coming from the room of the appellant. She reached there and saw that the accused had removed the underwear of her daughter and was raping her. Kamlesh, a lady who lives in the adjoining building also got attracted to the room on hearing the cries and on reaching there saw Manwati present. She saw the prosecutrix bleeding from her vagina. She saw the police take the prosecutrix and the appellant to the hospital.

Faced with the aforesaid evidence of the appellant being apprehended at the spot, literally with his pants down which we incidentally note were also stained with blood, learned Counsel for the appellant concedes that he has no scope to make any submission qua the conviction of the appellant but urges that the sentence of imprisonment for life is disproportionate. Counsel urges that it is true that the prosecutrix was 8 years but wants this Court to take into account that even the appellant was aged about 19 - 20 years when he committed the offence and that the nominal roll sent by the jail authorities do not evidence any bad conduct in the jail; on the contrary shows that the appellant, due to good conduct has earned a remission of 2 years and 10 days as on 12.2.2009.

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.

We accordingly dispose of the appeal maintaining the conviction of the appellant but modifying the sentence awarded and direct that the appellant shall undergo rigorous imprisonment for a period of 10 years and shall pay a fine of Rs. 30,000/-. The fine, if realized, shall be paid over to the victim. If the fine is not paid, the appellant shall undergo simple imprisonment in default of payment of fine for a period of two years.

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