Delhi High Court
Mahesh Goyal vs The State (Gnct Of Delhi) on 10 December, 2013
Author: Sunita Gupta
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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
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
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
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,
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.
(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
