On 12-10-2022, the Delhi High Court in the case of Ashish Windwani v. State (The NCT of Delhi) comprising of Justice ANOOP KUMAR MENDIRATTA, J. suspended the sentence and granted bail to a man convicted of raping a woman on the false pretext of marriage.

FACTUAL BACKGROUND

The appellant has preferred the appeal against the judgment learned ASJ, Patiala House Courts, New Delhi in FIR No. 684/2015 under Sections 376(2)(n)/313 IPC registered at Police Station R.K. Puram whereby he has been sentenced to undergo rigorous imprisonment of 10 years for the offence punishable under Section 376 (2)(n) IPC and directed to pay fine of Rs.6 lakhs (in default of payment of fine to undergo SI for one year). However, the appellant stands acquitted of the offence under Section 313 IPC.

Appellant Contentions

Learned counsel for appellant submits that there is patent infirmity in convicting the accused as crucial evidence in favour of appellant has been overlooked and challenges the impugned judgment on following grounds:-

  1. That the learned Trial Court erred in concluding that appellant obtained prosecutrix’s consent for sexual intercourse on a false promise of marriage.
  2. That the prosecutrix herself had written blogs which were posted on social media that she did not believe in the institution of marriage.
  3. That the appellant/applicant had met the complainant/prosecutrix on a social media application ‘Tinder’, which is known for casual dating. As such, the prosecutrix herself did not believe in the idea of marriage. Further, it is improbable by her conduct and circumstances on record that she was misled on alleged promise of marriage.
  4. That there is overwhelming evidence on record that the prosecutrix knew that the appellant was already married having two children which falsifies the theory of alleged promise to marry.
  5. That the present FIR was lodged after a delay of about 88 days and no explanation is forthcoming in this regard.
  6. That the learned Trial Court acquitted the appellant under Section 313 IPC disbelieving the testimony of the prosecutrix and concluded that the prosecutrix herself consented for termination of alleged pregnancy.

Prosecution and Complainant Contentions

The Prosecution accompanied by the Complainant contends before the Court that

  1. Complainant/prosecutrix was duly examined at Safdarjung Hospital and her statement under Section 164 Cr.PC was also recorded wherein she supported her version as given in the complaint.
  2. The appellant is stated to have misled for sexual intercourse on a false promise of marriage.
  3. That reliance could not be placed upon the social posts/blogs by the prosecutrix as the thought process could be changing and the same does not preclude from believing that the prosecutrix was duped by false promise. It is further urged that the prosecutrix was not aware of the marital status of the appellant and the testimony of the wife of the appellant DW-3 was rightly rejected. The delay in registration of FIR is stated to have been duly explained by the prosecution.

Court Observation

The Court in its observation stated that the Appellate Court, “at the stage of suspension of sentence and release on bail till disposal of appeal, has to examine if there is any patent infirmity in the order of conviction that renders the conviction prima facie erroneous. The evidence is not to be re-assessed or re-analyzed to suspend the execution of the sentence. The detailed observations on merits of the case are not called for, at this stage lest it prejudices the case of the petitioner but the matter has to be seen in the light of settled principles of law.”

Further, the court reiterates that the “blogs/posts on the social media put by the complainant/prosecutrix appear to reflect that she had reservations about institution of marriage and supported the idea of live-in relationship. The aforesaid observations need to be kept in perspective since the blogs had been made prior to the alleged reporting of the incident. It appears that sexual encounter initially at Hyatt Hotel on 26.05.2015 was completely voluntary. The evidence relating to incident dated 10.06.2015 also requires a deeper scrutiny in the light of defence evidence led on behalf of the appellant. It may be preposterous to make observations in detail at this stage but the evidence led by the appellant does require consideration. At this stage, even if the evidence is not to be re-assessed or re-analyzed for the purpose of execution of sentence but the infirmities which have been pointed out on record need consideration. It may also be noticed that the disposal of the appeal is likely to take some time.”

Further the Court allowed the Bail and suspension of Sentence.

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