Surinder Kumar v. State

1. The appellant was arrested;Oril[2]:i/54 and brought to trial (in Sessions Case No.240/r9f[6]);on;^-^^^^^ report (charge sheet) under Section 173 ofthe cMe 6f)drim 1973 (Cr.P.C.) submitted upon conclusion of Investigation into first information report (FIR) No.l 19/1996 of Police Station -Hauz Qazi, involving offences punishable under Sections •376/349/506/323/363/366 of Indian Penal Code, 1860 (IPC). On conclusion ofthe said trial, he was held guilty and convicted on the charge for offence under Sections 363/366/376(f) and Section 506 (II Part) IPC. By order on sentence passed on 30.03.2002, the trial court awarded rigorous imprisonment for four years under Section 363 IPC, rigorous imprisonment for seven years with fine of Rs.3,000/- for offence under Section 366, rigorous Crl. Appeal 530/2002 PageI of[4] 2018:DHC:8160 rcimprisonment for ten years with fine of Rs.9,000/- for offence under Section 376(f) IPG and rigorous imprisonment for two years for offences under Section 506 (II Part) IPG. The trial court directed that in case of default in payment of fine imposed for offences under Section 366 and 376(f) IPG, the appellant would undergo further rigorous imprisonment for one month and three months respectively. The substantive sentences on all four counts were directed to run concurrently with benefit of set off in terms of Section 428 Gr.P.G. having been accorded.

2. The present appeal was 'filed'to assail the said judgment and order on conviction. On;19.O[4].260M the appellant moved an application praying for he to be released ^ith punishment restrictedto the period of detention already/,undergone, thereby indicating he was V '' ' j ' =*.h" not challenging the judgment:pn;co:nvic;tion on merits. The learned Single Judge then 0 to enlarge the appellant on bail suspendiiig^thevs^ehc^l^ dated 19.04.2004. The nominal roll dated 06.07.2018 s'eht by the Superintendent Gentral Jail No.7, Tihar, indicates the appellant had by then undergone incarceration for nine years,r twO; m^hths-and sixteen days, this including the period ofremission earned.

3. At the hearing, the learned counsel (appointed by Delhi High Gourt Legal Services Gommittee), representing the appellant submitted that the judgment of conviction on merits is not challenged, the only plea raised being that the evidence clearly shows that the prosecutrix was over twelve years in age and, therefore, minimum Crl Appeal 530/2002 Page[2] of[4] punishment prescribed in law for the offence of rape under Section 376 (2)(f) IPG, as then in vogue, would not apply. It is submitted that there is a case made out for rigor ofthe sentence to be reduced.

4. Having heard both sides and having gone through the record, this court finds merit in the above contentions with regard to the age of the prosecutrix (PW-3). She gave her own age as 12 years. Her mother (PW-6) also testified at the trial and gave her age as the relevant point oftime to be 12 years. Though the prosecution had also relied on municipal record (Ex.PW-H/A) indicating the age to be less than 12 years old, it cannot be ignored that the said municipal record was not prepared contemp6^aneousiyy,.-tt been based on application which was later ni^de, it;not being clear as to how it is to be connected to the prosecutrix,.her relevant particulars being missing there fi-om. There is no schobl ^recbrdfavailable in respect of the prosecutrix. In these circumstances, only reliable material to gauge the age ofthe prose&i^^^M opmipn (Ex.PW-2/A) ofPW-2, the radiologist ofLNJP hospitd who confirmed that it (the age ofthe prosecutrix) could be up to thirteen years. It is the upper age limit indicated by the opinion which will hd^eito be assumed in favour of the defence. Thus, the assumption ofthe trial court that the prosecutrix was less than twelve years ofage on the relevant date is found to be erroneous.

5. The incident which is the subject niatter of this case occurred more than twenty-two years ago. The appeal has been pending for over sixteen years now. Having regard to these facts and Crl. Appeal 530/2002 ' circumstances, this court is of the view that ends of justice would be met if the punishment for the offence under Section 376 IPG is modified to rigorous imprisonment for seven years with fine as imposed by the trial court.

6. Ordered accordingly.

7. Having regard to the period of incarceration already suffered, it would undoubtedly include the period served in default of payment of fine. In this view, there need be no directions for the appellant to surrender back to custody. > J •

8. The appeal stands disposed ofin abpve terms. •'v ••.• ^ ^ R.K. GAUBA,J. '• - DECEMBER 21,2018 Vk • i"- Crl. Appeal 530/2002 Page[4] of[4]