Ranjit Kumar vs State
2012 Latest Caselaw 93 Del

*              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

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

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

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

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.

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,

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

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

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,

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.

(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,

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

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

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.

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