Aditya Alias Vicky vs State
2013 Latest Caselaw 3023 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Crl.M.B.No.1004/2013 (u/Sec.389 Cr.P.C. for
          suspension of sentence)in CRL.A. No. 1272/2012

                                          Date of Decision 17.07.2013
IN THE MATTER OF :
ADITYA @ VICKY                                      ..... Appellant
                        Through: Mr. B.S. Mathur, Advocate

                        versus


STATE                                            ..... Respondent

Through: Mr. Naveen Sharma, APP for State with IO.

CORAM

HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

1. The present application has been filed by the appellant under

Section 389 Cr.P.C. praying inter alia for suspension of sentence in case

FIR No.303/2011 registered under Sections 376/506 IPC at PS Rani Bagh.

2. By the impugned judgment dated 13.9.2012, the learned ASJ has

held the appellant guilty for the offences under Sections 376 and 506 IPC

and, vide order on sentence dated 24.9.2012, he has been convicted him

to undergo rigorous imprisonment for a period of ten years and pay fine

to the tune of `52,000/-, and in default of payment of fine, to undergo

simple imprisonment for a period of six months and fifteen days.

3. As per the nominal roll of the appellant, against the aforesaid

quantum of sentence, as on 15.12.2012, he had undergone sentence for

a period of 5 months and 18 days and as on date, the appellant would

have completed the sentence of one year.

4. Mr.B.S.Mathur, learned counsel for the appellant states that

the impugned judgment is based on misappreciation of evidence

inasmuch as the trial court has overlooked the delay between the date of

the alleged incident, i.e., 20.10.2011 and the date of lodging of the FIR,

which was at about 00.20 hours on 21.10.2011. He further states that

the evidence placed on record does not establish penetration of the

prosecutrix. Thirdly, it is stated that the serological report forward by the

FSL does not support the case of the prosecution. In support of the his

submissions, the learned counsel relies on the decision of the Supreme

Court in the case of Sadashiv Ramao Hadbe vs. State of Maharashtra &

Anr. Reported as (2006) 10 SCC 92.

5. Counsel for the appellant contends that where there were no

injuries that were found on the private parts of the prosecutrix, the doctor

who had examined her, was unable to give any opinion about the alleged

sexual intercourse and further, in the absence of any sperm on the swab

of the vagina taken on the same day, benefit of doubt ought to have been

given to the accused, as was done by the Supreme Court in the aforesaid

decision. He also relies on the decision of the Supreme Court in the case

of Narender Kumar vs. State (NCT of Delhi) reported as (2012) 7 SCC

171, to contend that if the Court finds it difficult to accept the version of

the prosecutrix on its face value, then it may search for evidence, direct

or substantial, that would lend assurance to her testimony and in the

absence of such an evidence, the accused ought to be acquitted.

6. Mr.Mathur states that in the present case, the prosecutrix had

not attained the age of menarche and while examining the evidence, this

aspect was not gone into by the trial court. Lastly, it is stated that there

were material discrepancies which were overlooked by the trial court; as

for example, in the complaint recorded by PS, Rani Bagh in DD No.3A, it

was stated that the cousin brother of the prosecutrix had telephonically

informed the police that his sister, the prosecutrix herein, had been

kidnapped and was subjected to gang rape by some boys when she was

returning from school, but subsequently, the statement of the prosecutrix

had referred to the appellant alone and no one else. Learned counsel

thus concludes that it is a fit case where the court ought to suspend the

sentence during the pendency of the appeal.

7. Learned APP for the State vehemently opposes the present

application and states that cogent evidence was placed on record by the

prosecution and taking into consideration the ocular evidence as also the

forensic evidence produced before it, trial court was justified in indicting

the appellant. He asserts that the appellant had not been convicted

purely on the testimony of the prosecutrix, but his conviction is based on

other material evidence that was placed on record. In support of his

submission that absence of injuries on the body of the prosecutrix, cannot

give any advantage to the accused and even if the hymen of the

prosecutrix was found to be intact with no actual wound on her private

parts, that itself can also not be treated as a conclusive proof of the fact

that the prosecutrix had not been subjected to rape, reliance is placed by

him on the decisions of the Supreme Court in the case of O.M. Baby

(Dead) by LRs vs. State of Kerala, reported as JT (2012) (6) SC 117

and in the case of Ravi Kapur vs. State of Rajasthan, reported as JT

(2012) (7) SC 480.

8. The Court has considered the submissions made by the

counsels for the parties in the light of the impugned judgment. It may

be noted at the outset that while considering an application for grant of

suspension of sentence, the Court is not expected to examine the entire

evidence produced before the trial court and weigh the same to arrive at

a conclusive decision. Rather, the court is only required to satisfy itself as

to whether the appellant has made out a prima facie case for grant of

suspension of sentence during the pendency of the appeal.

9. In the present case, the trial court has recorded the fact that

the prosecutrix, who was aged about 14 years at the relevant time and

was studying in Class IX, was returning home from her school on

20.10.2011 at about 1.30 PM and when she had reached the street near a

plastic factory, the accused, who was then 19 years of age and was

earlier studying in the same school, had caught hold of her and had

forcibly dragged her inside the factory where two workers were present.

The said workers were threatened by the accused and they had run away.

Thereafter, the accused had taken the prosecutrix inside the factory and

threatened her not to raise any alarm. When the prosecutrix had tried to

raise alarm, the accused had threatened to electrocute her and had raped

her.

10. In the impugned judgment the trial court held that at the time

of the incident, the prosecutrix was aged 14 years and 4 months, which

was below the age of consent and further, when she was brought to the

hospital with the alleged history of rape, she had specifically informed the

doctor that the appellant, who was living near the place of incident, had

committed rape on her. During the gynecological examination, the

doctor had noted that she had finger marks on her left cheek thus

establishing use of force on her at the time of rape. Further, the medical

report of the prosecutrix had revealed that blood was found over the labia

and her hymen was found to be ruptured, thus establishing rape. The trial

court had also taken into consideration the serological report submitted

by FSL, Rohini which showed the presence of human semen on the salwar

of the prosecutrix. Based on the testimony of the prosecutrix and the

medical and forensic evidence produced by the prosecution, the trial court

has held that the appellant was guilty of the offence under Sections 376

and 506 of IPC.

11. While considering the application filed by the appellant for

suspension of sentence, the Court is not expected to meticulously

examine each and every piece of evidence to decide as to whether the

same was sufficient for the trial court to have indicted the accused, unless

there are glaring and blatant errors on the face of the record to

demonstrate that the trial court had misappreciated the evidence or had

ignored material facts and evidence, thus making the judgment and the

sentence imposed, unsustainable. In the present case, the court is of the

prima facie opinion that the impugned judgment has considered the

evidence placed on record, including the testimony of the prosecutrix, and

the medical evidence to convict the appellant and this is hardly the stage

to test the evidence on the yardstick of the law laid down in that regard,

which is an exercise that would be undertaken at the time of final

arguments.

12. Given the above facts, at this stage, the Court is not inclined

to entertain the present application. Accordingly, the present application

is dismissed.

                                                       (HIMA KOHLI)
JULY 17, 2013                                             JUDGE
sk/mk