Crl.A.No.957/2006 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 25th February, 2010 + CRL.APPEAL NO.957/2006 ARUN KUMAR RAO @ARUN KUMAR ROY .... Appellant Through: Mr.Rajesh Mahajan, Advocate. Versus STATE OF NCT OF DELHI ..... Respondent Through: Ms.Richa Kapoor, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. (Oral) 1. The FIR in question for the offence punishable under Section 376/506 IPC has been registered on the statement Ex.PW-3/A of Smt.Sushila Devi PW-3, as per which on 2.8.2004, at around 1:00 PM she saw that the appellant was on top of her daughter in her house. He had removed not only his clothes but even those of his daughter and was in the act of sexually assaulting her daughter. She shrieked and neighbours gathered. With the help of one Vishal, appellant Crl.A.No.957/2006 Page 2 of 5 was apprehended and police was informed. 2. SI Sanjay Bhardwaj PW-13 who has recorded the afore-noted statement made the endorsement Ex.PW-13/B beneath the statement recording therein the fact that the appellant has been apprehended and that the victim and the appellant have been sent for medical examination. 3. At the trial Sushila PW-3 has deposed facts in harmony with her statement Ex.PW-3/A. She has withstood the test of cross-examination. Kumari ‘K’ PW-1, the victim has identified the appellant as her tormentor. Even she has withstood the test of cross-examination. 4. Vishal PW-4 has corroborated Sushila of having apprehended the appellant at the spot and having handed him over to the police. 5. SI Sanjay Bhardwaj PW-13 has proved having recorded the statement of Sushila and his endorsement coupled with the fact of appellant being arrested by him and sent for medical examination. 6. That Kumari ‘K’ was raped stands proved by the MLC Ex.PW-6/A and the testimony of Dr.Kumud Bharti PW-6 who examined the young girl. 7. That the appellant is capable of performing sexual intercourse stands proved by the MLC Ex.PW-7/A and the Crl.A.No.957/2006 Page 3 of 5 testimony of its author Dr.A.Goyal PW-7. 8. Semen was detected on the vaginal swab of the prosecutrix stands established by the report Ex.PW-18/C. 9. The report Ex.PW-1/A proved by Dr.A.K.Srivastava establishes that the DNA profile of the blood sample of the deceased matched that of the biological fluid Ex.PW-2/A i.e. the vaginal swab of the prosecutrix. Unfortunately, Ex.PW-2/A has not been put to the appellant when he was examined under Section 313 Cr.P.C. and hence the same has to be excluded while considering the incriminating evidence. 10. Learned counsel for the appellant concedes that in view of the afore-noted evidence, even excluding the DNA report, there is tell tale evidence of the appellant being the tormentor of the young girl. 11. We note that the appellant has been sentenced to undergo imprisonment for life i.e. the highest sentence permissible under law. 12. A Division Bench of this Court, in the decision reported as 2008 (4) JCC 2497 Khemchand vs. State of Delhi had extensively referred to case law to bring home the point that merely because the prosecutrix is a minor is no ground to impose the highest sentence. The judgment highlighted that the age of the accused and other aggravating circumstances Crl.A.No.957/2006 Page 4 of 5 such as brutality at the time of rape have to be factored in. If the rape is accompanied by acts of brutality higher sentence should be imposed. 13. A Division Bench of this Court, of which one of us, namely Pradeep Nandrajog, J. was a member of, in the decision dated 23.3.2009 in Crl.Appeal No.335/2005 ‘Prabhunath vs. State’, had opined that for awarding appropriate sentence, in case of child rape, commencing from the sentence of 10 years, higher sentence should be imposed only if aggravating circumstances exist other than the victim being a minor. 14. Finding none in the instant case, maintaining the conviction of the appellant, we modify the sentence directing that for the offence of having raped Kumari ‘K’ the appellant shall suffer rigorous imprisonment for a period of ten years. For the offence punishable under Section 506 IPC the sentence is maintained. Needless to state, both sentences shall run concurrently. 15. The appellant shall be entitled to the benefit of Section 428 Cr.P.C. 16. Since the appellant is still in Tihar jail we direct that a copy of this decision be sent to the Superintendent, Central Jail, Tihar to be made available to the appellant and for Crl.A.No.957/2006 Page 5 of 5 correction in the jail record pertaining to the sentence which the appellant has to suffer. (PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE FEBRUARY 25, 2010 dkb