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* IN THE HIGH COURT OF DELHI AT NEW DELHI
DATE OF DECISION: 10th DECEMBER, 2013
+ Crl. M.B. 2248/2013 In CRL.A. 1166/2012
MAHESH GOYAL ..... Appellant
Through: Mr. Jai Bansal, Advocate.
versus
THE STATE (GNCT OF DELHI) ..... Respondent
Through: Ms. Aashaa Tiwari, APP for the State
with Mr. A.K. Ojha, Addl. C.P., South
West District along with SHO R.S.
Lamba and Insp. Rishi Dev, PS Binda
Pur.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
Crl. M.B. 2248/2013 (for suspension of sentence)
1. This is an application under Section 389 Cr.P.C. for suspension of sentence and release of the appellant on bail.
2. As per the prosecution's case the complainant lodged a complaint on 13th December, 2010 regarding missing of his daughter since 21st November, 2010. He raised suspension upon the accused who is a tantrik. FIR No. 355/2010 was Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 1 of 6 registered under Section 363 IPC against he accused. The appellant was apprehended at Dhaula Kaun, Delhi. It was alleged that the appellant being a distant relative of complainant had gone to her house to attend last rites of the mother of the complainant. He also accompanied the family of the complainant including the prosecutrix to Garh Ganga where prosecutrix felt pain in her leg. Accused stated that she was having some bad influences and is to be treated. Thereafter, all of them came back to Delhi and accused took prosecutrix to Rohtak where she was kept for 20 days. On 21 st November, 2010 appellant made a call to complainant's house and called prosecutrix at Sai Baba Mandir, Najafgarh for her treatment. He took her to Bahadurgarh in the motorcycle of one Chet Ram and kept her there and gave some intoxicating substance in tea and thereafter committed rape upon her. Thereafter, he took her to various places and finally on coming to know that police is searching for them, he brought prosecutrix to Rewari where he requested one Pyare Lal to give him space. On his refusal, he took prosecutrix to Delhi where he was apprehended.
3. After trial, the appellant was convicted and sentenced to jail. It Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 2 of 6 was submitted by counsel for the appellant that there was delay of 12-13 days in lodging the FIR. The prosecutrix was missing since 21st November, 2010, whereas complaint was made only on 3rd December, 2010. There is no material on record that petitioner was tantrik. There is no evidence of administering intoxicating drugs to the prosecutrix. None of the witnesses have supported the version of the prosecutrix regarding sexual assault. Testimony of prosecutrix herself suffers from infirmity and it was submitted that there is total contradiction in her statement made under Section 164 Cr.P.C. before learned Metropolitan Magistrate and in her testimony before this Court. In her statement under Section 164 Cr.P.C. there was no mention that any rape was committed upon her at the house of Chet Ram and this fact is also not mentioned in her deposition before the Court. The prosecutrix accompanied the petitioner on her own free will. The letters written by her show that she left her home on her own. No explanation has been given by her as to why she did not tell anybody about alleged abduction and sexual assault when she met different persons at different places. She concealed her age and therefore the possibility that she was major at the time of Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 3 of 6 alleged offence cannot be ruled out. Legal evidence does not support the prosecution case as there is no injury on her private parts. FSL report also does not substantiate the case of prosecution. There is no explanation as to why prosecutrix left the house on 21st November, 2010 without the consent of her parents and in case petitioner had any such intention of committing rape upon her why would he call on the mobile phone of her father instead of the prosecutrix. As such, it was submitted that there are various points which are required to be considered. Moreover, there is no likelihood of appeal being heard in near future. As such, pending the appeal sentence of the appellant be suspended. Reliance was placed on Ranjit Kumar v. State 186(2012) DLT 795 and Chaman Lal & Ors. v. Central Bureau of Investigation 2013(135) DRJ 699.
4. On the contrary, it was submitted by learned APP for the State that all the submissions made by counsel for the petitioner were considered by the Trial Court, and thereafter, the appellant was convicted. She further stated that medical and scientific evidence did not support the prosecution case as prosecutrix was missing since 21st November, 2010 and she was recovered only on 3rd December, 2010. That being so, Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 4 of 6 semen could not be detected, however, keeping in view the seriousness of the offence appellant is not entitled for suspension of sentence.
5. Keeping in view the fact that as per nominal roll dated 13 th November, 2013 the appellant had remained in jail for a period of about two years, two months and twenty days, besides earning remission of three months and twenty one days, his conduct has been reported to be satisfactory, appeal is likely to take time and various arguable points have been raised by learned counsel for the appellant, as such, pending the appeal sentence of the appellant is suspended, subject to:-
(i) His furnishing personal bond in the sum of Rs.25,000/- with two sureties in the like amount to the satisfaction of the Trial Court concerned, out of which one surety should be a family member.
(ii) The appellant shall pay the entire fine amount imposed upon him.
(iii) It is further directed that he shall not leave the Union Territory of Delhi during this period.
(iv) He shall furnish his local and permanent address along with his mobile number to this Court as well as to the SHO concerned.
(v) He shall not contact, threaten or pressurise the victim or any member of her family during this period. Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 5 of 6
(vi) He shall be present in Court on each and every date of hearing, unless exempted.
6. A copy of this order be sent to the Superintendent, Jail, Tihar for information to the appellant.
7. The application stands disposed of.
CRL.A. 1166/2012 Be listed in the category of "Regular Matters" on its own turn.
SUNITA GUPTA (JUDGE) DECEMBER 10, 2013/AK Crl. M.B. 2248/2013 In Crl.A 1166/2012 Page 6 of 6