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 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 herâ€. 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 notedâ€.
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
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 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.
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 less severity, the sentence has to be less severe. Whether the sentence should beÂ
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 requiredâ€.
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,
• 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 factorâ€.
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 â€" 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.
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.
