Anil Kumar vs State Of Delhi
2009 Latest Caselaw 3749 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl. Appeal 714/2007 & Crl.M.B.1470/2008

                                              Date of Decision: 14.09.2009.
        ANIL KUMAR                                  ..... Appellant
                           Through:     Mr. K.B. Andley, Sr. Adv. with Mr.
                                        M.L. Yadav, Mr. M. Shamikh, advs.

                    Versus


        STATE OF DELHI.                            ..... Respondent
                     Through:           Mr. Navin Sharma, APP.

                                                          S.C. No.139/2006
                                                           FIR No.463/2006
                                                       U/S 363/376/506 IPC
                                                       P.S. KIRTI NAGAR

        CORAM:
        HON'BLE MR. JUSTICE MOOL CHAND GARG

1.      Whether the Reporters of local papers may be allowed
        to see the judgment?                                     No.

2.      To be referred to Reporter or not?                       No.

3.      Whether the judgment should be reported in the Digest? No.

:       MOOL CHAND GARG,J(Oral)

1.      Learned counsel appearing for the appellant does not press the appeal

on merits but submits that in the peculiar facts and circumstances of the case

where it is apparently a case of consent as the prosecutrix had not even

raised the alarm and remained without protest in the house of the appellant

for the whole night and her hymen was also found intact, the sentence

awarded to the appellant be reduced to the period already undergone

inasmuch as the appellant has already undergone two years five months


Crl.A.714/2007                                                         Page 1 of 2
 besides earning remission of five months and 23 days as on 26.02.2009.


2.      I have heard the submissions, the learned APP admits that in this

matter except for a photocopy of the birth certificate, which has not even

been properly exhibited and the statement made by the prosecutrix under

Section 161 Cr.P.C., there is no other evidence available on record to prove

that the prosecutrix was of less than 16 years of age. Even during trial when

the prosecutrix appeared before the trial Court her age was not recorded.


3.      Taking into consideration the aforesaid facts, and no alarm having

been raised by the prosecutrix and the evidence which has been recorded by

the prosecution which establish that the prosecutrix remained with the

appellant of her own for the whole night without raising any alarm and also

in view of the fact that her hymen was found intact, I am satisfied that the

interest of justice would be met if, while maintaining the conviction of the

appellant, the sentence awarded to him is reduced to the period already

undergone.


4.      The appellant may be, accordingly, released from jail forthwith in

case is he not wanted in any other case.


5.      The appeal and the application is disposed of.


6.      A copy of the order be sent to the jail superintendent.



                                                   MOOL CHAND GARG, J.

SEPTEMBER 14, 2009/anb