The victim's testimony in cases of sexual assault is vital and should be accepted unless shown to be infirm and not trustworthy. The endangerment of the victim's life during a rape justifies the application of Section 376(2)(m) IPC. The severity of the sentence for rape should be upheld in light of the rise in instances of rape and the perpetrator's criminal record.

S. Muralidhar, J.

This appeal is directed against the judgment dated 20th October 2015 passed by the learned Additional Sessions Judge, Special FTC-02 (Central) in Sessions Case No.02/2015 arising out of FIR No.1291/2014 registered at PS Sarai Rohilla convicting the Appellant for the offences under Sections 323, 366, 376(2)(m), 506 IPC.

2. The appeal is also directed against the order on sentence dated 3rd November 2015 whereby by the trial Court sentenced the Appellant as under:-

(i) For the offence punishable under Section 376 (2) (m) IPC, to Rigorous Imprisonment (‘RI’) for life, which shall mean imprisonment for the remainder of the convict’s natural life, and fine of Rs.10,000/-, in default whereof, he shall undergo Simple Imprisonment (‘SI’) for 2 years.

(ii) For offence punishable under Section 366 IPC, to RI for 10 years, and fine of Rs.5000/-, in default whereof, he shall undergo SI for 2 years.

(iii) For offence punishable under Section 506 IPC, to RI for 7 years and fine of Rs.5000/-, in default whereof, he shall undergo SI for 2 months.

(iv) For offence punishable under Section 323 IPC, to RI for 1 year, and fine of Rs. 1000/-, in default whereof, he shall undergo SI for 1 month.

(v) The sentences were directed to run concurrently.

3. The trial Court also recommended payment of compensation to the victim in terms of the Victim Compensation Scheme under Section 357A Cr PC and referred the matter to the District Legal Services Authority (Central District) (‘DLSA’). The DLSA was also asked to consider making provision for the care and maintenance of the aged parents, wife and children of the convict.

Background

4. The background to the appeal is that the victim (PW-2) who was aged around 25 years at the relevant time was working in a finance company in Gurgaon, Haryana for nearly three years. She would commute to and from her work in a cab arranged for by the company.

5. On 5th December 2014, PW-2 left her office at around 7 pm. She went to a restaurant in Gurgaon for dinner with her friends. She left the restaurant at 9:30 pm along with her friend (PW-23). After reaching Vasant Vihar, PW-23 booked a cab for her at around 10:15 pm using the Uber application on his mobile phone.

6. After around half an hour, a white coloured Maruti Suzuki Swift Dzire cab having registration number DL-1YD 7910 reached near the 24x7 outlet near Priya Cinema at Vasant Vihar. The mobile number of the cab driver ended in ‘8777’. It was around 11 pm when PW-2 sat in the rear seat of the cab. After a while, during the commute, she fell asleep.

7. When PW-2 awoke, she realised that the cab was parked at an isolated spot. The cab driver, correctly identified by PW-2 in the trial as the Appellant, was in the rear seat and upon her and was doing “cherkhani” with her. According to PW-2, she tried to push him away and also tried to open the door of the vehicle. However, the doors were locked and she could not open them despite her best efforts. When she raised an alarm, the Appellant slapped her 3-4 times and then pressed her neck forcefully stating, “Agar mujhe nahi karne degi to saria ghusa dunga”.

8. PW-2 got very scared on hearing the threat as she was reminded of the horrific gang rape that took place in Delhi on the night of 16th December 2012 that shocked the nation. PW-2 stated that the Appellant beat her, bit her lower lip, and scratched her neck, breast, shoulder, and back. She then states that the Appellant “lowered my jeans and my underwear. He also lifted my top and my brassiere. Accused overpowered me. Accused committed sexual intercourse with me and also tried to do unnatural sex, i.e. anal sex, with me”.

9. Whilst PW-2 was asleep, the Appellant had taken away her mobile phone. After committing the rape, he made a missed call to his own mobile phone from hers. PW-2 then pleaded with the Appellant to let her go. She assured him that she would not reveal the incident to anyone. The Appellant then started driving the cab, and on the way, the