Delhi High Court
Ismile vs The State Of Nct Delhi on 24 November, 2022
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
Neutral Citation Number: 2022/DHC/005246
$~26
* IN THE HIGH COURT OF DELHI AT NEWDELHI
Reserved on: 02nd August, 2022
Decided on: 24th November, 2022
+ CRL.A. 295/2007
ISMILE ..... Appellant
Through: Mr. Rajat Srivastav and
Mr. Mohd Jarjish,
Advocates.
V
THE STATE OF NCT DELHI ..... Respondent
Through: Mr. Hitesh Vali, APP for the
State with Inspector
Dharmendra Kumar, P.S.
Preet Vihar.
%
CORAM:
HON‟BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present appeal is filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for setting aside judgment dated 19.01.2006 (herein referred to as the "impugned judgment") and order on sentence dated 19.01.2006 passed by the Court of Additional Sessions Judge, Karkardooma Courts, Delhi (hereinafter referred as the "trial court") passed in Sessions Case bearing no 53/2004 arising out of FIR bearing no Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 1 11:12:14 Neutral Citation Number: 2022/DHC/005246 375/2003 registered under sections 363 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") at P.S Preet Vihar.
2. Briefly stated relevant facts as emerging from the record are that Mahender Kumar was residing at house bearing no 11-B, Parwana Road, Old Brij Puri, Delhi alongwith his family including daughter S who was born on 23.02.1988 and was a student of 10th Class in the year 2003. Ismile was working in a toy factory situated in front of the house of Mahender Kumar and used to tease S. Son 11.09.2003 at about 3:00 PM had gone to Sachdeva Book Shop situated at Chander Nagar and on the way Ismile asked S to talk with him and thereafter S accompanied him to some distance. Saidul who was friend of Ismile also came there after 10 minutes and both of them called an auto-rickshaw. They forcibly pushed S into auto- rickshaw and taken her to a house situated at Tugalpur near Noida which belonged to Mausi/Khala (maternal aunt) of Saidul. S was kept in the said house and on 12.09.2003 maternal aunt of the Saidul arranged another rented house in the same village where S was kept. Ismile committed sexual intercourse with several times during the period with effect from 11.09.2003 to 09.12.2003 forcibly. Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 2 11:12:14 Neutral Citation Number: 2022/DHC/005246 2.1 Mahender Kumar searched S on 11.09.2003 but S could not be traced. Mahender Kumar (hereinafter called as "the complainant") lodged a complaint regarding missing of Son 12.09.2003 to SI Kishan Kumar wherein the complainant suspected Ismile for missing of S. SI Kishan Kumar prepared rukka on the basis of complaint made by the complainant and FIR bearing no. 0375/2003 was got registered under section 363 IPC at P.S. Preet Vihar. The investigation in pursuance of FIR bearing no 0375/2003 was assigned to SI Kishan Kumar (hereinafter referred to as the "Investigating Officer"). The complainant on 09.12.2003 received a call from STD booth situated in Noida regarding presence of S. Thereafter the complainant alongwith the Investigating Officer and other police officials went to Noida and searched STD booth which was found to be belonged to Lokesh. The complainant and the Investigating Officer met Lokesh who informed them about presence of S, Ismile and Saidul in a room and from where S was recovered. Ismile and Saidul were also found there and were arrested. The Investigating Officer during course of investigation collected school certificate in respect of S, S and Ismile were medically examined, exhibits were Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 3 11:12:14 Neutral Citation Number: 2022/DHC/005246 collected, statement of S was also recorded under section 164 of the Code. The Investigating Officer after completion of investigation filed charge-sheet for offences punishable under sections 363/366/377/34 IPC before the concerned Court of Metropolitan Magistrate.
2.2 The case was ordered to be committed to the Court of Sessions. The trial Court vide order dated 07.08.2004 charged the Ismile and Saidul for the offences punishable under sections 366/34 IPC and 365/34 IPC. Ismile was also charged for the offence punishable under section 376 IPC. Ismile and Saidul pleaded not guilty and claimed trial.
2.3 The prosecution in support of its case examined S as PW1, Sudesh Rani, mother of S as PW2, ASI Sheopal Singh as PW3, Ct. Satbir as PW4, Dr. Renu, Senior Resident, Lal Bahadur Shastri Hospital, Delhi (LBS Hospital) as PW5, Dr. Rakesh Singh, CMO, LBS Hospital as PW6, HC Santosh as PW7, Smt. Parvinder, TGT, Govt. Girls Senior Secondary School, Radhey Shyam Park, Parwana Road as PW8, Lokesh as PW9, Mahender Kumar as PW10, SI Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 4 11:12:14 Neutral Citation Number: 2022/DHC/005246 Kishan Kumar as PW11 and Shri Amit Kumar, Metropolitan Magistrate, Karkardooma Courts as PW12.
2.4. PW1 is the victim/prosecutrix. PW2 is the mother of the PW1 the victim/prosecutrix. PW3 ASI Sheopal Singh recorded FIR bearing no. 0375/2003 on the basis of rukka prepared by the Investigating Officer. PW4 Ct. Satbir handed over the copy of rukka and FIR to the Investigating Officer and also participated in investigation. PW5 Dr. Renu produced MLC pertaining to PW1 the victim/prosecutrix which was prepared by Dr. Sonia Arora. PW6 Dr. Rakesh Singh on 10.12.2003medically examined Ismile. PW7 HC Santosh had taken PW1 the victim/prosecutrix to the LBS Hospital on 10.12.2003 for medical examination. PW8 Smt. Parvinder, TGT produced the Admission Register and School Leaving Certificate pertaining to the victim/prosecutrix to prove her date of birth as 23.02.1988. PW9 Lokesh was running STD Booth at Village Tugalpur, P.S. Kasana and informed the Investigating Officer about the PW1 victim/prosecutrix, Ismile and Saidul who were residing in the rented house belonged to PW9 Lokesh. PW10 Mahender Kumar is the complainant. PW11 SI Kishan Kumar being the Investigating Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 5 11:12:14 Neutral Citation Number: 2022/DHC/005246 Officer conducted the investigation, PW12 Shri Amit Kumar, Metropolitan Magistrate recorded the statement of PW1 the victim/prosecutrix under section 164 of the Code. 2.5 The prosecution proved the complaint lodged by the complainant PW10/rukka as Ex. as PW3/A, endorsement on rukka as Ex. PW11/A, copy of FIR Ex. as PW3/B, recovery memo of PW1 the victim/prosecutrix as Ex. PW10/A, personal search memos of Ismile and Saidul as Ex. PW4/A and Ex. PW4/B and their arrest memos as Ex. PW4/C and PW4/D, MLC of PW1 the victim/prosecutrix prepared by Dr. Sonia Arora as Ex. PW5/A, seizure memo of exhibits collected from PW1 the victim/prosecutrix as PW7/A, MLC in respect of Ismile as Ex. PW-6/A, seizure memo of the exhibits collected from Ismile as Ex. PW4/E, Form pertaining to the admission of PW1 the victim/prosecutrix in the concerned school as PW-8/B-1 and PW-8/B-2, relevant entry in the admission register of the concerned school as Ex. PW-8/A, School Leaving Certificate pertaining to PW1 the victim/prosecutrix as Ex. PW2/A, application for recording of statement of the victim/prosecutrix under section 164 of the Code as Ex. PW11/B, statement of the victim/prosecutrix Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 6 11:12:14 Neutral Citation Number: 2022/DHC/005246 recorded by PW-12 Shri Amit Kumar, MM as Ex. PW-1/A, application for supply of the copy of statement under section 164 of the Code as Ex. PW11/C and FSL Reports as Ex. PW11/D and PW11/E. The prosecution evidence was ordered to be closed vide order dated 12.01.2006 passed by the trial Court. 2.6 The statements of Ismile and Saidul were recorded under section 313 of the Code wherein they pleaded innocence and denied incrementing evidence. Ismile in statement under section 313 of the Code also stated that PW1 the victim/prosecutrix came to him and pressurized him by stating that either the appellant should follow her or she would take poison and die. Ismile preferred not to lead defence evidence. Saidul in statement under section 313 of the Code stated that he has been falsely implicated at the instance of complainant/PW10.
2.7 The trial Court vide impugned judgment after considering and analyzing prosecution evidence convicted Ismile and Saidul for offences punishable under section 366/34 IPC and acquitted for the offences punishable under section 365/34 IPC. Ismile was also convicted foe offence punishable under section 376 IPC. Ismile vide Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 7 11:12:14 Neutral Citation Number: 2022/DHC/005246 order on sentence dated 19.01.2006 was sentenced to undergo RI for ten years and to pay fine of Rs. 5,000/- in default SI for six months for offence punishable under section 376 IPC. Ismile and Saidul were also sentenced to undergo RI for five years and to pay fine of Rs.5,000/- in default SI for six months for offence punishable under section 366/34 IPC. Both the sentences were ordered to be run concurrently and benefit under section 428 of the Code was also extended.
3. Saidul did not challenge the impugned judgment and order on sentence and as per Nominal Roll, he served the sentence awarded to him vide order on sentence dated 19.01.2006.
4. Ismile (hereinafter referred to as "the appellant") being aggrieved filed the present appeal and challenged the impugned judgment and order on sentence dated 19.01.2006 on the grounds that the impugned judgment is bad in law and against the facts on record. The prosecution has failed to prove its case beyond reasonable doubt and to establish the guilt of the appellant. The trial Court has failed to appreciate contradictions in respective testimony of PW4 Ct. Satbir and PW9 Lokesh as PW4 Ct. Satbir deposed that they left the police Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 8 11:12:14 Neutral Citation Number: 2022/DHC/005246 station Preet Vihar at about 11:30 PM for going to village Tugalpur along with PW11 the Investigating Officer and PW10 Complainant while PW9 Lokesh deposed that police officials came to his shop at about 11:30 PM which is a material contradiction and is fatal to case of the prosecution. The prosecution did not examine mausi/Khala of the convict Saidul which is fatal for the prosecution case. The trial court did not appreciate that PW2 Sudesh Rani deposed that she received a telephone from PW1 the victim/prosecutrix who told that she was available at particular place whereas PW1 the victim/prosecutrix did not depose regarding making a telephone call to her mother i.e. PW1 which is a material contradiction. The trial court also failed to appreciate discrepancy in age of the PW1 the victim/prosecutrix and bone age determination of PW1 the victim/prosecutrix was also not conducted. The prosecution did not examine Dr. Sonia Arora who prepared MLC of PW1 the victim/prosecutrix. It is prayed that the impugned judgment and order on sentence dated 19.01.2006 be set aside and the appellant be acquitted.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 9 11:12:14 Neutral Citation Number: 2022/DHC/005246
5. The counsel for the appellant had advanced oral arguments and also submitted written arguments. The counsel for the appellant argued that PW1 the victim/prosecutrix was a consenting party as PW1 the victim/prosecutrix in her statement under section 164 of the Code admitted to accompany the appellant and also deposed that both of them had walked for a considerable distance when convict Saidulwho is one of the friends of appellant met. Saidul was asked to bring auto-rickshaw and thereafter they went to Tugalpur but the PW1 the victim/prosecutrix did not shout for any help and during entire journey PW1 the victim/prosecutrix did not whisper about any threat and as such testimony of PW1 victim/prosecutrix is unworthy of any credit.
5.1 The counsel for the appellant after referring testimony of PW9 Lokesh argued that alleged threats to PW1 the victim/prosecutrix is impossible as PW9 Lokesh deposed that he let out the room @ Rs.700/- P.M where the appellant and PW1 victim/prosecutrix lived as husband and wife. PW9 in cross examination deposed that the house in which room was given on rent was two storied with five rooms on each floor and four families were residing on the ground Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 10 11:12:14 Neutral Citation Number: 2022/DHC/005246 floor and five families on the first floor with common facilities of hand pump, bath room and toilets. PW9 Lokesh further deposed that prosecutrix used to come to STD/Telephone booth run by him to make calls almost 3 to 4 times in a day. The counsel for the appellant argued that these facts reflect that PW1 the victim/ prosecutrix was in regular touch with her family, relations & friend and that there was no pressure or coercion caused to her. The counsel for the appellant further referred testimony of PW 5 Dr. Renu Senior Resident Doctor who deposed stated that there was nothing substantial to confirm rape and argued that it can be safely concluded that there was consent on part of the PW1 the victim/prosecutrix.
5.2 The counsel for the appellant regarding relevance of consent argued that the age of discretion was 16 years as per law when the incident occurred and Date of Birth (DOB) of PW1/the victim/prosecutrix according to prosecution was 23.02.1988 and relied upon School Leaving Certificate(SLC) and according to said document the age of PW1 the victim/prosecutrix was 15 years 7 month as on 11.09.2003. He further argued that as per catena of judgments, it is not safe to rely upon the School Leaving Certificate Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 11 11:12:14 Neutral Citation Number: 2022/DHC/005246 as parents have a tendency to understate the age at the time of admission and authenticated proof of age is the record from the Hospital or the Municipality and as per PW8 date of birth as per school record was neither as per MCD nor Hospital. The prosecution was required to conduct the ossification/radiological test which was not conducted and failure to conduct ossification/radiology test caused serious doubts as to confirmation of age. The counsel for the appellant relied on State (GNCT of Delhi) V Hargovind delivered by the Division Bench of this Court in Criminal Appeal No. 334/2018 decided on 16.07.2019.
6. The Additional Public Prosecutor for the State/respondent argued that the impugned judgment and order on sentence dated 19.01.2006 were passed by the concerned trial Court after considering the relevant facts and the evidence on record and there is no legal infirmity in the impugned judgment and order on sentence.
7. The perusal of impugned judgment reflects that the trial court considered the arguments advanced by the defence counsel. The trial court relied on school leaving certificate to answer that PW1 the victim/prosecutrix was minor at the time of commission of alleged Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 12 11:12:14 Neutral Citation Number: 2022/DHC/005246 offence and referred Bhoop Ram V State of UP, AIR 1989 SC 1329, State of Himachal Pradesh V Shree Kant Shekari, (2004) 8 SCC 153, Amarjeet Singh V State, 1989 (16) DRJ (Delhi High Court)278. The trial court also observed that as the PW1 the victim/prosecutrix was below age of 16 years and as such her consent was immaterial.
8. The incident happened on 11.09.2003. The prosecution to prove that PW1 the victim/prosecutrix was a minor at the time of commission of offence subject matter of present trial relied on respective testimony of the PW1 the victim/prosecutrix, PW2 Sudesh Rani, PW8 Smt. Parvinder, TGT, Govt. Girls Senior Secondary School, RadheyShyam Park, Parwana Road and PW10 the complainant. PW1 the victim/prosecutrix deposed that on 11.09.2003, she was a student of 10th class. PW2 Sudesh Rani who is the mother of the PW1 the victim/prosecutrix deposed that at the time of alleged incident, PW1 the victim/prosecutrix was aged about 14 years and was a student of 10th class. PW2 also handed over the school leaving certificate Ex. PW2/Ato the Police during investigation. PW8 which is a material witness to establish the age of Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 13 11:12:14 Neutral Citation Number: 2022/DHC/005246 the PW1 the victim/prosecutrix brought admission register pertaining to PW1 the victim/prosecutrix. PW8 deposed that PW1 the victim/prosecutrix was admitted in the school on 23.02.2002 and as per the school record, her date of birth is 23.02.1988. PW1 the victim/prosecutrix was admitted in 9th class and school leaving certificate Ex. PW2/A was issued on 23.08.2003. PW8 Smt. Parvinder, TGT, Govt. Girls Senior Secondary School, RadheyShyam Park, Parwana Road also proved relevant entry in the admission registered as Ex. PW-8/A. PW-8 also brought the form filled by the parents of the PW1 the victim/prosecutrix at the time of admission, the photocopy of which proved as PW8/B-1 and Ex.
PW8/B-2. The PW8 also deposed that the PW1 the victim/prosecutrix was admitted in the school on the basis of school leaving certificate issued by the previous school i.e. Springdales Senior Secondary School, Kureji and also proved previous school leaving certificate as Ex. PW8/C. The PW8 during cross- examination admitted that the birth certificate pertaining to the PW1 the victim/prosecutrix issued by the MCD was not produced in the school at the time of admission and the PW1 the victim/prosecutrix Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 14 11:12:14 Neutral Citation Number: 2022/DHC/005246 was admitted on the basis of Ex. PW8/C. The PW8 was not cross- examined by the defence counsel.
9. The perusal of school leaving certificate Ex. PW2/A reflects that the date of birth of the PW1 the victim/prosecutrix was 23.02.1988 and the said date of birth is also mentioned in the school leaving certificate issued by Springdales Senior Secondary School, Kureji Ex. PW8/C. The school leaving certificate Ex. PW2/A and Ex. PW8/C reflects that the PW1 the victim/prosecutrix was born on 23.02.1988. There is no discrepancy in School Leaving Certificate Ex. PW2/A and Ex. PW8/C.
10. The Supreme Court in Bhoop Ram V State of U.P. AIR 1989 SC 1329 as relied upon by the trial Court observed as under:-
"the first is that the appellant has produced a school certificate which carried the date 24.6.1960 against the column 'date of birth'. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appears to be about 30 years of age as on 30.4.1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for the parents to understate the age of their children by one or two years at the time of their Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 15 11:12:14 Neutral Citation Number: 2022/DHC/005246 admission in school for securing benefits to the children in their future years."
10.1 The Supreme Court in State of Himachal Pradesh V Shree Kant Shekari, (2004) 8 SCC 153 also held as under:-
14. We shall first deal with the question of age. The radiological test indicated age of the victim between 15 to 16 years. The school records were produced to establish that her date of birth was 10.4.1979. The relevant documents are Ex. PW-6/A to PW-6/C. The High Court was ofthe view that these documents were not sufficient to establish age of the victim because there was another document Ex. PW-7/A which according to the High Court did not relate to the victim. Merely because one document which was produced by the prosecution did not, according to the High Court relate to the victim that was not sufficient to ignore the evidentiary value of Ex. PW6/A. to Ex.
PW6/C. These wererecords regarding admission of the victim to the school andher period of study. These documents unerringly prove that the date of birth of the victim as per official records was 10.4.1979. Therefore, on the date of occurrence and evenwhen the FIR was lodged on 20.11.1993 she was about 14years of age. Therefore, the question of consent was really of no consequence." 10.2 The Supreme Court in Shah Nawaz V State of UP & another, Criminal Appeal No 1531 of 2011 decided on 05.08.2011 observed that the School Leaving Certificate is also a valid proof in determining the age. The Supreme Court in Hina V Union of India and Others, (2016) Supreme Court Cases 293regarding relevancy of School Leaving Certificate as proof of age also observed as under:- Signature Not Verified Digitally Signed By:JITENDRA
Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 16 11:12:14 Neutral Citation Number: 2022/DHC/005246
6. It is seen from the eligibility criteria, as extracted above, even an affidavit was sufficient as proof of age. Be that as it may, in case, the copy of the secondary school leaving certificate meets the requirement of the eligibility criteria, we fail to understand as to how does it make a difference in case the school leaving certificate is of the higher secondary school. The learned counsel for the Corporation was at pains to explain before us that the secondary school leaving certificate is issued by the Board whereas the school leaving certificate of the higher secondary school is issued by the school. School leaving certificate, as the very expression indicates, is issued by the school since the pupil leaves the school. Annexure P-1, which was produced by the appellant before the Corporation is captioned as "School Leave Certificate". The requirement of the corporation is only a proof regarding the age. No doubt, certain documents are specified in the eligibility criteria which would be accepted by the Corporation as proof of age.
10.3 The Bombay High Court in Peer Mohammad Ghotu Mohd.
Ismail V State of Maharashtra and another, Criminal Appeal bearing No. 491/2021 decided on 31.01.2022 after relying on School Leaving Certificate also observed that the School Leaving Certificate, prima facie, indicates that the non-applicant no.2/victim was below 18 years of age. In that view of the matter, she is "child" within the meaning of clause.
10.4 The School Leaving Certificates Ex. PW2/A and Ex. PW8/C clearly proved that PW1 the victim/prosecutrix was a minor at the time of incident and School Leaving Certificates proved by the Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 17 11:12:14 Neutral Citation Number: 2022/DHC/005246 prosecution can be safely relied on. There was no need to conduct ossification test of PW1 the victim/prosecutrix for determination of her age. The school leaving certificate Ex. PW2/A and Ex. PW8/C were prepared by the concerned school authority during the course of their ordinary business and there is no possibility of any manipulation or mentioning wrong date of birth of the PW1 the victim/prosecutrix. The trial Court has rightly observed that the PW1 the victim/prosecutrix was minor at the time of alleged offence i.e. below the age of 16 years. There is no force in the arguments advanced by the counsel for the appellant that the ossification test of the PW1 the victim/prosecutrix was not conducted to determine her age which is fatal to case of prosecution.
11. The defence counsel argued that PW1 the victim/prosecutrix was a consenting party and relied upon the deposition of the PW1 the victim/prosecutrix and her statement under section 164 of the Code. PW1 the victim/prosecutrix deposed that on 11.09.2003 at about 3:00 PM she had gone to Sachdeva Book Shop situated at Chander Nagar where the appellant met her and expressed his desire to talk with PW1 the victim/prosecutrix. Thereafter, the PW1 the Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 18 11:12:14 Neutral Citation Number: 2022/DHC/005246 victim/prosecutrix accompanied the appellant to some distance and after 10 minutes, the convict Saidul also came and thereafter, both of them pushed the PW1 the victim/prosecutrix in an auto-rickshaw and taken her to a village situated at Tugalpur near Noida. PW1 the victim/prosecutrix during cross-examination, also deposed that when she was pushed by the appellant into the auto-rickshaw, at that time, she did not raise any noise as she was nervous and when she tried to raise her voice, then the appellant as well as convict Saidul caught hold of his hands and legs and gagged her mouth. PW1 the victim/prosecutrix during cross-examination also deposed that the house of the Mausi/Khala (maternal aunt) of Saidul was single storey and there were 07 rooms on the ground floor wherein other families were residing. PW1 the victim/prosecutrix denied the suggestions that she had good relation with the families or that she was having love affairs with the appellant. The defence counsel on the basis of cross-examination of the PW1 the victim/prosecutrix argued that the PW1 the victim/prosecutrix was a consenting party in establishing physical relationship with the appellant. The defence counsel also relied upon the testimony of PW9 who deposed that there were 04 Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 19 11:12:14 Neutral Citation Number: 2022/DHC/005246 families residing on the ground floor and 05 families were residing on the first floor.
12. The prosecution has establish that the PW1 the victim/prosecutrix was a minor at the time of commission of offence. The Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar V State of Maharashtra, (2019) 18 SCC191 dealt with the issue of consent and observed as under:-
15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the woman is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.
16. Section 90 IPC defines "consent" known to be given under fear or misconception:
"90. Consent known to be given under fear or misconception.-- A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 20 11:12:14 Neutral Citation Number: 2022/DHC/005246 knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;"
17. Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or though deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.
13. The respective testimony of PW1 the victim/prosecutrix and PW9 Lokesh may be reflecting that the PW1 the victim/prosecutrix was a consenting party to the sexual intercourse or establishing physical relations with the appellant but the consent of the PW1 the victim/prosecutrix was immaterial as she was a minor i.e. below the age of 16 years at the time of alleged incident.
14. The Supreme Court in Satish Kumar Jayanti Lal Dabgar V State of Gujarat, Crl. Appeal No. 230 of 2013 decided on 10.03. 2015 observed as under:-
14) First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 21 11:12:14 Neutral Citation Number: 2022/DHC/005246 making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:-
"375. Rape--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
xxxxxx Sixthly - With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
15) The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.
16) Once we put the things in right perspective in the manner stated above, we have to treat it a case where the Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 22 11:12:14 Neutral Citation Number: 2022/DHC/005246 appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act."
14.1 Another Co-ordinate Bench of this Court in Bail Application No. 111/2022In titled as Jagbir V State (N.C.T. of Delhi) decided on 22.07.2022 held as under:-
10. In view of settled position of law, sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor. It may also be noticed that a girl child faces several adverse challenges if she is married below 18 years of age. The child marriage is also prohibited under the Prohibition of Child Marriage Act, 2006. Also, Section 375 defines "rape" and it provides that a man is said to commit "rape" if he has sexual intercourse with a woman under the circumstances falling under any of the seven descriptions mentioned in the Section. Clause six of Section 375 makes it clear that if the woman is under the age of 18 years then sexual intercourse with her, with or without consent is "rape".
Even a sexual intercourse with wife under 18 years of age regardless of her willingness or consent is rape as held in Independent Thought vs. Union of India, (2017) 10 SCC 800 giving a meaningful reading to Exception 2 to Section 375.
11. In view of the principles of law enunciated by the Hon‟ble Supreme Court, the consent, if any, given by the victim girl for the alleged physical relationship being a minor cannot be treated as a consent in the eyes of law. It Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 23 11:12:14 Neutral Citation Number: 2022/DHC/005246 may also be observed that sexual exploitation and sexual abuse of children are heinous crimes which need to be effectively addressed. Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.
14.1.1 The Bombay High Court in ABC V State of Maharashtra Through P.I. Bharti and Another, 2021 SCC OnLine Bom 517 also observed the contention of the learned counsel appearing for the appellant that there was consentual sex, deserves no consideration, since, the Respondent No. 2 was admittedly minor on the date of alleged incident. It was further observed that the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby and her consent for the sexual act was immaterial. The Bombay High Court in Peer Mohammad Ghotu Mohd. Ismail V State of Maharashtra and another also observed as under:-
10. Be that as it may. The consent obtained by giving threat and/or even simple consent by a minor has no value in the eye of law. Therefore, at this stage, the learned counsel for the appellant cannot press into service the aspect of consent. The appellant is a resident of the State of Uttar Pradesh. He has no roots in Maharashtra.
In our view, this is not a case wherein this Court should exercise its jurisdiction to release the appellant on anticipatory bail.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 24 11:12:14 Neutral Citation Number: 2022/DHC/005246
15. It is proved that PW1 the victim/prosecutrix was below the age of 16 years at the time of commission of offence and as such her consent for sexual intercourse with the appellant was immaterial. The argument advanced by the counsel for the appellant regarding consent of PW1 the victim/prosecutrix is without any legal basis.
16. The prosecution mainly rely on testimony of PW1 the victim/prosecutrix to prove guilt of the appellant.PW1 the victim/prosecutrix deposed that she was taken to Village Tugalpur by the appellant where the appellant during 11.09.2003 to 09.12.2003 committed rape several times with her forcibly.PW6 Dr. Rakesh Singh who medically examined the appellant on 10.12.2003 also deposed about sexual potency of the appellant. The appellant can be convicted solely on basis of testimony of PW1 the victim/prosecutrix. However the Supreme Court in Raju and others V State of Madhya Pradesh, (2008) 15 SCC 133 cautioned regarding accepting of sole testimony of the prosecutrix as basis of conviction. It was observed as under:-
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 25 11:12:14 Neutral Citation Number: 2022/DHC/005246 false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved.
It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
The Supreme Court in Krishna Kumar Malik V State of Haryana, (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. (See also, Santosh Prasad @ Santosh Kumar V The State of Bihar, Criminal Appeal No. 264 of 2020 decided on 14.02.2020).
16.1 The Supreme Court in State (NCT of Delhi) V Pankaj Chaudhary, (2019) 11SCC 575 held that conviction can be sustained on the sole testimony of the prosecutrix it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration. It was Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 26 11:12:14 Neutral Citation Number: 2022/DHC/005246 further observed that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. It is observed and held as under:
29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence [Vishnu v. State of Maharashtra, (2006) 1 SCC 283].It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.[State of Rajasthan v. N.K., (2000) 5 SCC 30].
16.2 In Sham Singh V State of Haryana, (2018) 18 SCC 34, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 27 11:12:14 Neutral Citation Number: 2022/DHC/005246 be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. It was observed as under:
6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]
7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 28 11:12:14 Neutral Citation Number: 2022/DHC/005246 conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.(See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).
The reliance is also placed on Ganesan V State, (2020) 10 SCC 573 and Phool Singh V The State of Madhya Pradesh, Criminal Appeal no 1520/2021 decided on 01.12.2021.
17. PW1 the victim/prosecutrix has fully supported the case of the prosecution. PW1 the victim/prosecutrix was consistent in her entire testimony including cross examination. There is nothing in her cross examination which can dilute credibility of her testimony. There is no material contradiction in testimony of PW1 the victim/prosecutrix. The testimony of PW1 the victim/prosecutrix can be safely relied on and inspire confidence being credible and trustworthy. The appellant can be safely convicted on testimony of PW1 the victim/prosecutrix. The trial court rightly relied on sole testimony of PW1 the victim/prosecutrix. The defence as taken by the appellant in cross Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 29 11:12:14 Neutral Citation Number: 2022/DHC/005246 examination of PW1 the victim/prosecutrix and statement under section 313 of the Code is also considered judiciously but defence as taken by the appellant is without any basis and does not appeal to reasons.
18. The defence counsel argued that there are material contradictions in the testimony of PWs examined by the prosecution and also pointed out certain discrepancies as detailed hereinabove. Mere marginal variations in the statements of witnesses cannot be dubbed as improvements. Every contradiction discrepancy or improvement is not fatal for prosecution. It is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh and another, (2015) 7 SCC 48held as under:-
When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.Signature Not Verified Digitally Signed By:JITENDRA
Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 30 11:12:14 Neutral Citation Number: 2022/DHC/005246 The Supreme Court in Bhagwan Jagannath Markad and others V State of Maharashtra, (2016) 10 SCC 537 observed as under:-
While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness. The discrepancies as pointed out by the counsels for the accused are minor and insignificant and do not have any fatal effect on the prosecution case.
19. The prosecution is able to prove beyond reasonable doubt that the appellant along with convict Saidul kidnapped PW1 the victim/prosecutrix against her will and forced PW1 the victim/prosecutrix for sexual intercourse and the appellant committed rape with PW1 the victim/prosecutrix. The impugned judgment is passed by the trial court after considering prosecution evidence and Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 31 11:12:14 Neutral Citation Number: 2022/DHC/005246 defence evidence in right perspective. There is no infirmity or illegality in impugned judgment and does not call any interference from this court and is accordingly upheld.
20. The appellant was convicted to undergo RI for 10 years and also to pay fine of Rs.5000/- and in default to undergo SI for 6 months for the offence under section 376 IPC. The appellant was further convicted to undergo RI for a period of 05 years and also to pay a fine of Rs. 5000/- and in default to undergo SI for 06 months for the offence punishable under section 366/34 IPC. Both the sentences were ordered to be run concurrently and the appellant was given the benefit under section 428 of the Code. Sentencing is an important task in the future prevention of crime. The one of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is executed. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 32 11:12:14 Neutral Citation Number: 2022/DHC/005246 and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
20.1 The Supreme Court in the Soman V State of Kerala,(2013) 11 S.C.C. 382, also observed the absence of structured guidelines. It was observed that giving punishment to the wrongdoer is at the heart of the criminal justice delivery but in our country. it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.
20.2 In State of MP V Najab Khan, (2013) 9 SCC 509, the High Court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The Supreme Court restored the sentence awarded by the trial court. Referring the judgments in Jameel V State of UP, (2010) 12 SCC 532, Guru Basavraj V State of Karnataka, (2012) 8 SCC 734, the court observed as follows: -
In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 33 11:12:14 Neutral Citation Number: 2022/DHC/005246 matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment.
The Supreme Court explained Proper Sentence in Deo Narain Mandal V State of UP, (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low.
While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account.
Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
20.3 The Supreme Court in Shyam Narain V State (NCT of Delhi), (2013) 7 SCC 77 laid emphasis on proportional sentencing by affirming the doctrine of proportionality. It was pointed out that Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 34 11:12:14 Neutral Citation Number: 2022/DHC/005246 sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh V Surajbhan Singh, (2014) 7 SCC 323, State of Punjab V Bawa Singh, (2015) 3 SCC 441 and Raj Bala V State of Haryana, (2016) 1 SCC 463.
20.4 In Kokaiyabai Yadav V State of Chhattisgarh,(2017) 13 SCC 449, it was observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and matured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanizing the world. In Ravada Sasikala V State of A.P., AIR 2017 SC 1166, the Supreme Court Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 35 11:12:14 Neutral Citation Number: 2022/DHC/005246 referred the judgments in Jameel V State of UP, (2010) 12 SCC 532, Guru Basavraj V State of Karnataka, (2012) 8 SCC 734, Sumer Singh V Surajbhan Singh, (2014) 7 SCC 323, State of Punjab V Bawa Singh, (2015) 3 SCC 441 and Raj Bala V State of Haryana, (2016) 1 SCC 463 and has reiterated that in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The Supreme Court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 36 11:12:14 Neutral Citation Number: 2022/DHC/005246 20.5 The Supreme Court in Gopal Singh V State of Uttarakhand, (2013) 7 SCC 545 held as under:-
Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.
The Supreme Court of India in State of H.P V Nirmala Devi, Criminal Appeal No 667 of 2017 decided on 10 April, 2017 it was held as under: -
We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." Following principles can be deduced from the reading of the aforesaid judgment:Signature Not Verified Digitally Signed By:JITENDRA
Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 37 11:12:14 Neutral Citation Number: 2022/DHC/005246 Imprisonment is one of the methods used to handle the convicts in such a way to protect and prevent them to commit further crimes for a specific period of time and also to prevent others from committing crime on them out of vengeance. The concept of punishing the criminals by imprisonment has recently been changed to treatment and rehabilitation with a view to modify the criminal tendency among them.
20.6 The Supreme Court in Accused „X‟ V State of Maharashtra, (2019) 7 SCC 1 observed as under: -
Sentencing is appropriate allocation of criminal sanctions, which is mostly given by the judicial branch. [Nicola Pad field, Rod Morgan and Mike Maguire, "Out of Court, Out of Sight? Criminal Sanctions and No Judicial Decision- making", The Oxford Handbook of Criminology (5th Edn.).] This process occurring at the end of a trial still has a large impact on the efficacy of a criminal justice system. It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner. We need to appreciate that a strict fixed punishment approach in sentencing cannot be acceptable, as the Judge needs to have sufficient discretion as well.
50. Before analysing this case, we need to address the issue of the impact of reasoning in the sentencing process. The reasoning of the trial court acts as a link between the general level of sentence for the offence committed and to the facts and circumstances. The trial court is obligated to give reasons for the imposition of sentence, as firstly, it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 38 11:12:14 Neutral Citation Number: 2022/DHC/005246 liberty of the accused is subject to the aforesaid reasoning.
Further, the appellate court is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons..." The Supreme Court in State of Madhya Pradesh V Udham, Crl. A. 000690/2014 decided on 22.10.2019 observed as under:-
There is no gainsaying that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society. In light of the same, we are of the opinion that we need to provide further clarity on the same.
Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.Signature Not Verified Digitally Signed By:JITENDRA
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21. The counsel for the appellant stated that the appellant belongs to the lower strata of the society and is a poor person. PW-1 the victim/ prosecutrix with her own consent had run away along with the appellant as she was in love with the society. The counsel further stated that the appellant has to look after his family and prayed that the sentence of 10 years awarded for the offence punishable under section 376 IPC be reduced to the sentence for the period already undergone.
21.1 The Additional Public Prosecutor appearing on behalf of the State/respondent argued that the appellant has committed rape with PW-1 with the victim/prosecutrix who was minor at the time. The appellant has committed heinous offence and the Trial Court has awarded suitable punishment to the appellant after taking lenient view. The Additional Public Prosecutor stated that the quantum of punishment for the offence punishable under section 376 IPC cannot be reduced.
22. As per the nominal roll pertaining to the appellant, he had already undergone incarceration of 5 years 2 months and 17 days besides earning remission for a period of 1 year 1 month and 07 days. Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 40 11:12:14 Neutral Citation Number: 2022/DHC/005246
23. The appellant belongs to the lower strata of the society and has to maintain his family. The incident pertains to the year 2003 when the appellant was just aged about 19 years. Before the amendment in section 376 IPC, the offence punishable under section 376 was punishable for a term not less than 7 years which may be for life or for a term which may extend to 10 years along with liability to pay fine. The proviso attached to section 376(1) provides that the Court may for adequate and special reasons to be mentioned in the judgment imposed a sentence of imprisonment for a term less than 7 years. The Supreme Court in Phool Singh V The State of Madhya Pradesh has declined to accept the prayer of the convict to reduce the sentence less than seven years in view of the proviso to Section 376 IPC. The appellant has not placed any special reasons for reduction of the sentence below 07 years. However, considering the totality of the circumstances, the punishment for 10 years awarded for the offence punishable under section 376 IPC is reduced to the extent that the appellant shall undergo RI for a period of 07 years and rest of the punishment is maintained for offences under sections 376 Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 41 11:12:14 Neutral Citation Number: 2022/DHC/005246 IPC and 366 IPC awarded in terms of order on sentence dated 19.01.2006.
24. The present appeal is accordingly decided. The appellant is directed to surrender before the concerned Court to undergo remaining part of the sentence/imprisonment.
25. The present appeal along with pending applications, if any, stands disposed of. Copy of this judgment be also supplied to the appellant free of cost and be sent to concerned trial court/successor court for information.
SUDHIR KUMAR JAIN (JUDGE) NOVEMBER 24, 2022 N/M Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.12.2022 CRL.A. 295/2007 ISMILE V THE STATE OF NCT DELHI Page 42 11:12:14