CASE NAME	Khem Chand v. State (NCT of Delhi), 2008 SCC OnLine Del 1611
CITATION	Crl.A. No. 5/2000, Crl.A. No. 740/2001, Crl.A. No. 813/2001, Crl.A. No. 719/2002, Crl.A. No. 816/2002, Crl.A. No. 673/2002, Crl.A. No. 126/2003, Crl.A. No. 541/2003, Crl.A. No. 765/2003, Crl.A. No. 173/2004, Crl.A. No. 89/2006 and Crl.A. No. 141/2006
COURT	Delhi High Court
BENCH	Hon’ble Justice Manmohan Sarin and Justice S. L. Bhayana
APPELLANT	Khem Chand and Others
RESPONDENT	State (NCT of Delhi)
DECIDED ON	7th July 2008

INTRODUCTION

The conviction of Khem Chand, the appellant, who was charged with sexual offenses, including the rape of his underage daughter, under Section 376 of the Indian Penal Code (IPC), is the subject of the case of Khem Chand vs. the State of Delhi, which was determined on July 5, 2008. Along with outraging the modesty of another juvenile victim under Section 354 of the IPC, the appellant was also accused of committing unnatural acts under Section 377 of the IPC. The appellant was found guilty by the trial court on the basis of the victim’s statements and supporting medical evidence.

The appellant contested the trial court’s conclusions in his appeal, raising concerns about the reliability of the testimony, the fairness of the proceedings, and the sufficiency of the medical evidence that was offered. Additionally, he argued that considering the facts of the case, the penalties he received were harsh.

Important topics covered in the case include how evidence is handled in child sexual abuse cases, how medical evidence supports victim testimonies, and how judges handle sentences in cases involving sexual assaults against minors. This case is important because it has ramifications for the legal safeguards that victims of child abuse can obtain as well as the courts’ duties to uphold justice in delicate cases involving sexual assault.

FACTS OF THE CASE

The convict’s eldest child is the poor little girl ‘M’. Sometime in 1997, she lost her mother. Soon after her mother’s death, she fell prey to her father, the appellant, who sexually perverted and exploited her. She endured months of suffering as a result of the physical abuse that protests encouraged. When his daughter ‘D’ told her mother about the appellant’s attempt to sexually exploit her friend, the issue was revealed. The appellant enters a not-guilty plea. The appellant’s defense is that the prosecutrix ‘M’ was coerced into making a false statement by Laksha Nand, Triveni, and Sharda Devi, who lived in the neighborhood and wanted to seize his property. He was said to have objected to Gollu, Laksha Nand’s brother-in-law, visiting their home and then joined the plot to falsely accuse him. The appellant also cited ‘M’ and ‘D’ as untrustworthy witnesses. There is no trust in the defense that the appellant’s daughter, the prosecutrix, would collude with neighbors to falsely accuse him of the crime to further the claimed snatching of his land in Crl. (A) No. 5 of 2000 & related matters Page No. 9 of 56.

The Trial Judge said ‘M’ provided credible and trustworthy evidence. According to her testimony, the appellant began raping her on the sixth day after her mother passed away. It is intended to draw attention to some disparities in the number of times the appellant engaged in forced intercourse. These are typically memory and observational errors brought on by time and have no tangible repercussions. The version of ‘M’ was duly supported by the medical evidence. It was discovered that her hymen had ruptured. The girl had not reached the menarche stage, and the doctor reported a history of physical abuse. According to the prosecutrix ‘M”s deposition, the appellant also had oral sex with her friend ‘D’ and insulted his modesty. The case of ‘D’ being raped had been put up by the prosecution, but the court’s statement stated that it was an unnatural offense against her person and oral sex. Under these circumstances, the appellant was found guilty under Sections 354 and 377 IPC by the learned Sessions Judge, who invoked the provisions of Sections 421 and 464 of the Cr.PC.

ISSUES RAISED

• Given that the charge was made under Section 376 IPC for rape, was the conviction under Section 377 IPC for unnatural offenses against “D” legally sustainable?
• Given the different nature of the offenses under Sections 376 and 377 IPC, may the provisions of Section 464 Cr.P.C. be used to condemn the appellant under Section 377 IPC?
• Given his actions while incarcerated and the time he had already served, was the appellant entitled to a reduction in his sentence after serving around ten years?

ARGUMENTS FROM BOTH SIDES

Arguments on behalf of the appellant

The appellant’s knowledgeable attorney, Mr. Sumit Verma, argued that the conviction under Section 377 of the IPC was unlawful and could not be upheld in the prosecution under Section 376 of the IPC. Section 377 IPC would have a separate offense and defense. Furthermore, oral sex would not be considered an offense under Section 377 of the IPC. He argued that because Sections 376 and 377 IPC were separate offenses, sub-Section (2) of Section 464 Cr.PC could not be applied in these particular circumstances. 

Arguments on behalf of the respondent

However, the State’s knowledgeable attorney, Mr. Sunil Sharma, strongly disagrees with the appeal of leniency or respite in sentencing. He argues that even the statute’s stipulated sentence was less severe given the circumstances of the offense and its depravity. He argues that on the sixth day after his wife’s death, the appellant committed the crime against his defenseless daughter. It displays a corrupt and demonic mind. Despite having multiple sexual encounters with his daughter, he was still unsatisfied and tried to take advantage of her friend. The reformation was scarcely a case that should be tried.

JUDGMENT

As stated in the counseling report, the prosecutrix’s mother exhibited a strict and controlling demeanor in this particular situation. The prosecutrix’s statement is coherent, unambiguous, and categorical. The findings and medical data support this. The hymen was discovered ripped. The prosecutrix had sustained minor injuries, including abrasions. The small inconsistency or disparity in these situations does not weaken the case against the appellant or accused in any way. The appellant’s youth and the fact that this was his first offense are the sole mitigating elements in this case. There doesn’t seem to be any preparation for doing the crime. There is a chance that the appellant will undergo reform and rehabilitation. While incarcerated, he has not demonstrated any criminal tendencies. He has behaved satisfactorily in jail since his conviction. 

Given the aforementioned, the Court believes that the ends of justice would be served in this case by reducing the appellant’s life sentence to a minimum of 10 years in prison with admissible remissions, subject to payment of a fine that has been increased from Rs. 5000 to Rs. 20,000, and, in default, subjecting him to two years of SI. 

The appellant and his father’s affidavits state that they would not live on the property where the prosecutrix and her family currently dwell or in the area around it, which is accepted. The appellant and his father will fulfill their obligations.

CONCLUSION

Khem Chand’s conviction for sexual assault charges, including rape, unnatural acts, and outraging the modesty of minors, was to be reviewed by the court. The testimony of the minor victims, who claimed that the appellant had repeatedly sexually abused them, served as the main source of evidence in this case. Medical evidence, which showed physical injuries compatible with the victims’ assertions, supported their accounts. In order to support its case against the appellant, the trial court mainly relied on the victim’s testimonies, which were determined to be trustworthy and in line with the medical reports.

However, the defense attempted to cast doubt on their veracity by claiming that the victim’s claims were overstated and without adequate support. It was argued that the evidence presented by the prosecution was inconsistent. Nonetheless, the court pointed out that when it comes to sexual assaults, particularly where minors are involved, a child’s testimony needs to be handled with kindness and consideration and its veracity evaluated in the context of the case. The victims’ testimonies were deemed believable by the court due to their age and the nature of the charges; this was further reinforced by medical evidence that verified the abuse.

Important issues regarding the burden of proof in situations involving children and sexual assault are also brought up in this case. The court stressed that the victim’s hesitation to report the abuse right away or the lack of physical resistance does not always mean that the act did not occur. The court’s decision to uphold the convictions was influenced by the appellant’s activities, which showed a definite pattern of grooming and taking advantage of the victims.

The court maintained the appellant’s conviction and ultimately dismissed the appeal. The court found no grounds to question the allegations, highlighting the validity of the victim’s testimony and the supporting medical evidence. The case serves as a reminder of how crucial it is to ensure justice while handling young victims of sexual offenses’ statements with tact. It also emphasizes how the judiciary must weigh all available information and the seriousness of crimes against minors when deciding on suitable punishments.

In summary, the ruling upheld the fundamental tenet that child sexual abuse is a serious crime and that the legal system must provide strong protection for those who are most in need. The court’s ruling demonstrates a dedication to ensuring those who commit such crimes are held responsible for their deeds, especially when backed by trustworthy and validated evidence.