Crl.A.No.860/2008 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 22nd April, 2010 + CRL.A. 860/2008 PARVEZ ..... Appellant Through: Mr.D.M.Bhalla,Advocate versus STATE (NCT) OF DELHI ..... Respondent Through: Ms.Richa Kapoor, APP 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 Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. (Oral) 1. The prosecutrix Kumari ‘J’ PW-1, has successfully withstood the test of cross-examination and hence we see no reason to disbelieve her testimony that the appellant, who resided near her house, was the one who had sexually assaulted her. Her brother Saddam PW-2 has corroborated the prosecutrix when he deposed that the appellant enticed him and his sister on a rickshaw and near a pushta sexually assaulted his sister. Even he has withstood the test of cross- examination. Amina PW-3 and Abbas PW-4, the parents of the Crl.A.No.860/2008 Page 2 of 4 prosecutrix, have corroborated what the prosecutrix has deposed by deposing that in the afternoon of 15.03.2005 they say their daughter crying. She was having blood stain on her clothes and told them that the appellant had raped her. 2. Tilak PW-5 who has not been cross-examined has proved the fact that Abbas and his family were residing as his tenant in the house in which even appellant Parvez was residing as a tenant in a room. 3. Dr.Asha Sharma PW-9 has proved that the MLC Ex.PW-9/B was prepared by Dr.Sunita, Senior Resident, and a colleague of Dr.Asha Sharma, as also the fact that on the MLC, the opinion Ex.PW-9A was in her i.e. Dr.Asha Sharma’s hand. 4. The exhibited document show that hymen of the prosecutrix was torn i.e. the prosecutrix was raped. 5. Under the circumstances we concur with the reasoning of the learned Trial Judge that it stands proved that the appellant had subjected the prosecutrix to a sexual assault. 6. The only question which arises for consideration is: What should be the appropriate sentence to be imposed? 7. Noting that the prosecutrix was a minor, sentence imposed upon the appellant by the learned Trial Judge is to undergo imprisonment for life. 8. We note that in respect of rape, minimum sentence Crl.A.No.860/2008 Page 3 of 4 prescribed is that of a sentence of imprisonment for 7 years, with discretion vested in the judge to reduce the sentence to less than 7 years, but after giving reasons. Where the victim is a minor, minimum sentence prescribed is to undergo imprisonment for 10 years with discretion vested in the Judge to reduce the same, but after giving reasons. Thus, that the victim is a minor, stands factored as an aggravating circumstance in the Statute book, which provides minimum sentence of imprisonment for 10 years to be imposed upon the accused held guilty, where the victim is a minor. 9. Thus, merely because the victim is a minor would be no ground by itself to award the highest sentence of imprisonment for life. 10. Needless to state, if apart from the victim being a minor, aggravating circumstances in the form of brutality, bestiality, cruelty etc. or any other aggravating circumstance is found, same has to be factored and in said eventuality sentence in excess to undergo imprisonment for 10 years may be imposed. 11. We find no other aggravating circumstances except the fact that the prosecutrix was a minor. Since said aggravating circumstance stands factored in the minimum sentence prescribed, we dispose of the appeal modifying the sentence imposed upon the appellant. Crl.A.No.860/2008 Page 4 of 4 12. For the offence of having raped the prosecutrix, a minor, the sentence imposed upon the appellant is to undergo rigorous imprisonment for a period of 10 years. 13. Needless to state that the appellant shall be entitled to the benefit of Section 428 Cr.P.C. 14. Appeal stands disposed of. 15. Since the appellant is still in jail, we direct that a copy of this decision be sent to the Superintendent Central Jail Tihar for his record as also to be supplied to the appellant. PRADEEP NANDRAJOG, J. SURESH KAIT, J. APRIL 22, 2010 ‘mr’