* HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. A. No. 5558/2011 in CRL. A. No. 712/2010
Date of Decision : 05.01.2012
RANJIT KUMAR ...... Appellant
Through: Mr. K.K. Sud, Sr. Adv.
with Mr. Atul, Adv.
Versus
STATE ...... Respondent
Through: Mr. Pawan Sharma, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
Crl. M. A. No. 5558/2011
1. This is an application for suspension of sentence and for grant of bail during the pendency of the appeal. The appellant has been convicted vide judgment dated 06.04.2010 and the order on sentence dated 08.04.2010, for an offence under Section 376 and 506 IPC. He has been directed to undergo RI of 7 years and 3 years Crl. A. 712/2010 Page 1 of 15 respectively, for the aforesaid two offences apart from a fine of Rs.5,000/-.
2. I have heard Mr. K. K. Sud, the learned senior counsel for the appellant and the learned APP on the question of suspension of sentence and for enlargement of the appellant on bail during the pendency of the appeal. I have also gone through the record.
3. The case of the prosecution is that the Sister Sophia/PW-
2 of NGO 'Chaitanalaya' had brought the prosecutrix/Sumanti (PW-1) aged about 13-14 years to police station Mangol Puri, New Delhi where she is alleged to have made a statement marked as exhibit PW1/A on the basis of which an FIR under Section 376/506 IPC had been registered. In the said statement she has alleged that she was a resident of District Ranchi, Jharkhand and she was brought to Delhi by one Smt. Mukta, wife of the appellant, almost a month back and she was staying in house no. 161, Swayam Singh Colony, Punjabi Bagh, New Delhi, the residence of the Crl. A. 712/2010 Page 2 of 15 appellant. On the night of the 3rd - 4th October, 2005, the appellant is alleged to have done 'GALAT KAAM' (Referring to sexual intercourse) with Sumanti/prosecutrix/PW-1 despite her objection. It is alleged by her that when she disclosed this fact to Mukta, wife of the appellant, the latter beat her and warned her that her life would be in danger in case she discloses this fact to any other person. It is alleged by her that for two days, the appellant continued with GALAT KAAM and after having sexual intercourse, the appellant asked her to take bath. But on the date of incident she has not taken bath. It is further stated by her that when the appellant and his wife Mukta had slept, the prosecutrix managed to escape and came to the main road where she met with a girl whose name and address she did not know. The girl brought her to the office of an NGO 'Chaitanalaya', where she met Sister Ms. Filominna and Ms. Hillaria who sent her with Sister Ms. Sophia to the police station whereupon the present Crl. A. 712/2010 Page 3 of 15 FIR was lodged and she was sent for medical examination. After investigation in the matter the State filed the charge-sheet against the appellant.
4. The appellant, on the basis of the prosecution evidence, stands convicted for the offence u/s 376/506 IPC. As on date, the appellant has already been in custody for almost 6 ½ months after having been found guilty for the aforesaid two offences.
5. The learned senior counsel for the appellant has prayed for suspension of sentence on the ground that the guilt of the appellant has not been established beyond reasonable doubt and there are serious lacunae in the prosecution's case, so far as the testimony of the prosecutrix, her medical examination and the report of the forensic expert is concerned. It has been further contended by him that the material witnesses have not been examined. It is contended that the appellant during the course of his entire trial was on bail and he did not misuse his liberty. It is further urged since Crl. A. 712/2010 Page 4 of 15 appellant has, prima facie, an arguable case which ultimately may result in his acquittal and in case the benefit of suspension of sentence is not extended to him then by the time the appeal itself is taken up for hearing in the routine course, the appellant would have undergone his complete sentence. It is also urged by the learned senior counsel that appellant is married and having minor children, he has roots in the society, and therefore, there is no question of his fleeing away from the processes of law.
6. The learned APP has vehemently opposed the grant of suspension of sentence and the enlargement of the appellant on bail during the pendency of the appeal by urging that the prosecutrix, in the instant case, was a minor and there is a seal of judicial approval by the Court of Sessions, and therefore, there is absolutely no reason for not trusting the same, at this stage and extending the benefit of suspension of sentence to the appellant. Crl. A. 712/2010 Page 5 of 15
7. I have carefully considered the submissions and have gone through the record.
8. I find that although the commission of offence of rape qua a minor is one of the most heinous crimes but then one does not have to get swayed only by the allegations which are leveled against the accused merely because he stands convicted by the trial Court. The conviction of an accused by the trial Court puts a seal of judicial approval but it does not mean that it has attained finality. The first appeal is a matter of right and the Appellate Court has to reappraise the evidence and to come to its own conclusion in order to determine the correctness, propriety and the legality of the judgment of conviction and the order of sentence passed by the Court below. Section 389(1) Cr.P.C. reads as under:
"389.Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that execution of the sentence or order appeal against be suspended and, also, if he is in confinement, Crl. A. 712/2010 Page 6 of 15 that he be released on bail, or on his own bond."
9. The above sub-clause (1) will show that the Appellate Court has the discretion to release the appellant on bail during the pendency of the appeal and although no guidelines have been given but the only obligation is to record reasons for granting bail. So far as the guidelines for exercise of discretion of suspension of sentence and the grant of bail is concerned it will be governed by the same parameters, as are laid down u/s 437 & 439 Cr.P.C. The only new factor which comes into existence is that there is a seal of judicial approval by the trial Court so far as the allegations are concerned. But while considering the application for suspension of sentence one of the important factor in my view would be that a bird's eye view of the appreciation of evidence and the way the finding of guilt has been returned has to be seen. In other words if the appellant has a prima facie arguable case which may go to the root of the matter and the Crl. A. 712/2010 Page 7 of 15 matter is not likely to be reached in near future then the discretion may be exercised in favour of the appellant in a given fact and situation.
10. Keeping in view the above broad principle in view, in the instant case, prima facie, the learned senior counsel for the appellant has been able to make out at least an arguable case which if considered on merits may change the complexion of the finding, therefore, these are the following grounds which prompt the Court to extend the benefit of suspension of sentence and the enlargement of the appellant on bail during the pendency of the appeal.
(i) The case of the prosecution is that on the first occasion when sexual intercourse is alleged to have been committed, the prosecutrix was asked to take bath which she did, but on the second occasion when the sexual intercourse is alleged to have taken place, she is alleged to have escaped without taking bath and it is on that date itself that she lodged an FIR and was Crl. A. 712/2010 Page 8 of 15 medically examined. The vaginal swabs had been taken and sent to Forensic Science Laboratory, but the vaginal swabs were not found to be containing either semen (spermatozoa) or blood. In the medical report it has come that there was no fresh tear of the hymen. The medical record shows that spermatozoa remain alive within the vagina for good number of hours if the prosecutrix had not taken bath and if that be so then vaginal swab ought to have shown the presence of semen or the blood which was not there. The medical report exhibited as PW-12/A does not support this contention;
The medical treatise, by some of the leading authors have commented on this subject as under:
"Parikh, who in his book titled „ Parikh‟s Textbook of Medical Jurisprudence and Toxicology‟ 5th Edn, Crl. A. 712/2010 Page 9 of 15 on pg. 445, under the heading „Sexual Offences- Rape‟ has said as under:
"Presence of Spermatozoa and other microorganisms: Normally, sperms remain motile in the vagina for about two to three hours and non-motile forms are detectable for about 24 hours. Motility persists longer at body temperature. The sperms remain motile in the uterine cavity for 3-5 days. Non-motile forms may be found in the female genital tract for about 3 weeks to 3 months or more after death" Modi, who in his book titled, „Modi‟s Medical Jurisprudence and Toxicology‟, 23rd Edn. On page 929 records as under:
"The presence of Spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by Morrison (1972) up to 9 days in the vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period." On page 947, Modi records under the heading „ Case Law-Stains of Blook, Sperms (or other Fluids, Urine, Faeces) on the Clothes of the Victim and the Accused as under:
"Motile Spermatozoa can be found for as long as 100 hours and non motile for as long as 17 days" Therefore, this is a vital fact which was not considered by the Sessions Court.
Crl. A. 712/2010 Page 10 of 15
(ii) Secondly, there are numerous contradictions and improvements in the version given by the prosecutrix over the version as recorded in rukka or in her 161 Cr.P.C. in comparison to the statement recorded before the Court. I am purposely not reproducing these contradictions and improvements lest it may cause prejudice to either of the parties at the stage of final disposal. Suffice, it would be here to mention that the prosecutrix in her statement denied that she was not cooperating with the doctors while her medical examination was being done. But the doctor who prepared the medical legal record of the prosecutrix has specifically mentioned that the patient was not cooperative at all and consequently the size of the uterus could not be assessed by Dr. Anita Arya, the Gynecologist.
(iii) Thirdly, the prosecution's case is that the prosecutrix was brought to Delhi by one Mukta, Crl. A. 712/2010 Page 11 of 15 who is alleged to be the wife of the appellant but actually there is another lady by the name of Sushila who, transpires from the record, happens to be the wife of the appellant. Mukta has neither been examined as a witness nor made as an accused and prima facie, she was also in a way abettor of the offence. No explanation has been given by the prosecution regarding her non-examination.
(iv) Fourthly, the age of the prosecutrix as disclosed by her is 13 years and according to the testimony of PW-9/A Dr. M.L. Kohli no reason was given for forming such an opinion. The relevant skiagram or the report of the dentist was not produced during the trial nor any finding or the record of the radiologist was produced to determine the boney age of the prosecutrix. The school leaving certificate has also not been Crl. A. 712/2010 Page 12 of 15 seized or produced by the IO. Therefore, that also becomes a relevant factor.
11. Keeping in view the aforesaid facts and the fact that the appellant was on bail during the course of trial and he was also granted interim bail on as many as three occasions and he did not misuse his liberty, I am inclined to exercise discretion in his favour. Further, in normal course appeal is not likely to be listed in immediate near future. Therefore, I feel that the appellant's sentence deserves to be suspended and he be enlarged on bail during the pendency of the appeal. The appellant has already undergone almost 6 ½ months of sentence and any further incarceration awaiting the final hearing of the matter may cause incalculable harm to the appellant. Accordingly, the sentence of the appellant is suspended and he is enlarged on bail during the pendency of the appeal, on his furnishing a personal bond in the sum of Rs. 25,000, with two sureties of the like amount, to the Crl. A. 712/2010 Page 13 of 15 satisfaction of the learned Registrar (Appellate). This is subject to the conditions:
(i) That the appellant shall pay the entire fine amount imposed on him.
(ii) The appellant shall not commit any other offence during the period of his suspension of sentence and the grant of bail.
(iii) The appellant shall not threaten any of the witnesses including the prosecutrix, either directly or indirectly who have testified against him.
(iv) The appellant shall not change his present or permanent address without the permission of the Court.
(v) The appellant shall not leave the National Capital Region of Delhi without with the permission of the Court.
(vi) The appellant shall give his present address, permanent address and the mobile number, by way of an affidavit, to the court.
(vii) The appellant shall be present in Court on each and every date of hearing.
Crl. A. 712/2010 Page 14 of 15
12. With these orders the application is allowed.
13. Expression of any opinion hereinbefore may not be treated as an expression on the merits of the case and it is only prima facie view formed for the purpose of deciding the bail application.
V.K. SHALI, J.
January 05, 2012 KP Crl. A. 712/2010 Page 15 of 15