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2017 Supreme(Del) 1470
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, REKHA PALLI, JJ.
MOOL CHAND – APPELLANT
VERSUS
STATE – RESPONDENT
CRL.A.1353 OF 2013
DECIDED ON : 16-05-2017
FOR THE APPELLANT : MR. KANHAIYA SINGHAL, ADV.
FOR THE RESPONDENT: MR.RAJAT KATYAL, APP. WITH W/SI RAMA SAROHA
The main legal point established in the judgment is the need to balance aggravating and mitigating factors in determining the appropriate sentence for a criminal offense.
Headnote:
Conviction - Indian Penal Code - Sections 363/376 (2)(f) - Code of Criminal Procedure, 1973 - Section 374 (2) - [IPC, 1860, Sections 363/376 (2)(f)] - The judgment discusses the conviction of the appellant under Sections 363/376 (2)(f) of the Indian Penal Code, 1860. The court analyzed the testimonies of the victim, her brother, and mother, along with medical evidence and FSL examination, and upheld the conviction. The court also modified the sentence based on mitigating factors.
Fact of the Case:
The case involved the rape of a 6/7 year old girl, with the appellant being convicted under Sections 363/376 (2)(f) of the IPC. The prosecution's case relied on the testimonies of the victim, her brother, and mother, along with medical evidence and FSL examination.
Finding of the Court:
The court found the testimonies of the victim, her brother, and mother to be reliable and trustworthy, and upheld the conviction under Sections 363/376 (2)(f) of the IPC. The court also modified the sentence based on mitigating factors.
Issues: The issues revolved around the reliability of the testimonies, medical evidence, and FSL examination, and the appropriate sentence for the appellant.
Ratio Decidendi: The court balanced the aggravating and mitigating factors to modify the sentence, considering the appellant's conduct, background, and lack of previous convictions.
Final Decision: The court upheld the conviction under Sections 363/376 (2)(f) of the IPC and modified the sentence to rigorous imprisonment for ten years, considering the mitigating factors.
G.S. SISTANI, J.
1. This is an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) filed against the judgment of conviction dated 28.06.2013 and order on sentence dated 29.06.2013 by which the appellant has been convicted under Sections 363/376 (2)(f) of the Indian Penal Code, 1860 (‘IPC’) and has been sentenced to undergo rigorous imprisonment for a period of seven years for the offence committed under Section 363 IPC with fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for three months. The appellant further stands sentenced to life imprisonment for the offence committed under Section 376 (2) (f) along with fine of Rs. 10,000/- and in default of payment of fine, simple imprisonment for six months.
2. Before the rival submissions of learned counsel for the parties can be considered, we deem it appropriate to state the case of the prosecution in short.
3. It is the case of the prosecution that on 17.08.2012 information regarding rape of a 6/7 year old girl, resident of H. No.A-107, Jailorwala Bagh, Phase-II, Ashok Vihar, Delhi, was received and recorded vide DD No.16A (Ex.PW7/A) at PS Ashok Vihar. The said information was given to SI Rajender Singh (PW-13) through telephone and PSI Suman Bajaj was also sent to the spot where on inquiry by SI Rajender Singh (PW-13), public persons disclosed that the victim girl, with whom the incident had taken place, had been taken to BJRM Hospital by a PCR. PSI Suman (PW-17) met Smt. Maharaji (PW-9), mother of victim child at the spot and they both reached at BJRM Hospital and met the victim child. PSI Suman (PW-17) obtained MLC (Ex.PW4/A) of the victim child, whereupon the concerned doctor had mentioned „alleged history of sexual assault?. PW-17 seized sexual assault evidence collection kit and sample seal, after obtaining the same from the concerned doctor, who had medically examined the prosecutrix.
4. Thereafter, PW-17 along with the victim child (PW-1) and her mother Smt. Maharaji (PW-9) returned back to PS, where Smt. Maharaji (PW-9) gave her statement (Ex.PW9/A) stating that she was residing at House No. A-107, Jailorwala Bagh, Phase-II, Ashok Vihar, Delhi with her family and that she was working in a factory at Wazirpur Industrial area. She further stated that she used to leave for work at 9:00 AM and that on 17.08.2012 she went for work at 9:00 AM as usual, leaving behind her daughter (PW-1) and son (PW-14), who were playing in a park outside their home. At that time, her neighbour Mool Chand/appellant was also sitting in the said park near the school. She further stated that at about 10:00 AM, her son Shailesh (PW-14) came to factory and told her that her daughter (PW-1) was weeping bitterly and she immediately returned back home with her son and asked the prosecutrix as to why she was crying and that prosecutrix (PW-1) disclosed to her that when she was digging the mud in the park, their neighbour/appellant came there and asked her why she was digging the mud from there and said that he would show her good mud. Under this pretext, he took her in his lap to the bushes in the park and made her lie down on the grass. She further told the complainant (PW-9) that the accused took off her underwear and also took of his underwear and closed her mouth with his hand and laid down on her and committed wrong act with her and that, in the meantime, two boys came there and they started giving beatings to appellant Mool Chand who ran away from there. The said boys brought the prosecutrix (PW-1) back to her home. Complainant (PW-9) then stated that the prosecutrix (PW-1) was complaining of pain in private parts and stomach and that she disclosed all the facts to her husband (PW-10) after he returned back from his duty and he in turn made a call at 100 number. Police came and took her daughter (PW-1) and husband (PW-10) to the hospital where the prosecutrix was medically examined.
5. On the basis of said complaint, FIR No. 202/
