Suraj vs State (G.N.C.T. Of Delhi)
2013 Latest Caselaw 1275 Del

$-31
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      DECIDED ON : 14th March, 2013

+      CRL.A. 1218/2011, CRL.M.B.1706/2011 & CRL.M.A.6587/2012

       SURAJ                                      ..... Appellant

                          Through :   Mr.Deepak Vohra, Advocate.


                          versus

       STATE (G.N.C.T. OF DELHI)                  ..... Respondent

Through : Ms.Fizani Husain, APP.

SI Dharmendra Kumar, PS Nand Nagri.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant- Suraj impugns judgment dated 24.02.2011 and

order on sentence dated 26.02.2011 in Sessions Case No.245/2007 arising

out of FIR No.331/2007 PS Nand Nagri by which he was convicted for

committing offences punishable under Sections 363/366/376 IPC and SI

for seven years under Section 376 IPC.

2. Allegations against the appellant were that on 21.04.2007, he

kidnapped prosecutrix 'X' (assumed name) and committed rape upon her.

It was also alleged that Usha @ Munni and Rahis were also involved in

the commission of the said offences. A charge-sheet was submitted

against Suraj, Rahis and Usha @ Munni for committing offences

punishable under Sections 363/366/368/376/120B/34 IPC. The

prosecution examined sixteen witnesses to substantiate charges. In 313

Cr.P.C. statement, the accused pleaded false implication. On appreciating

the evidence and considering the rival contentions of the parties, the Trial

Court, by the impugned judgment, convicted and sentenced the appellant

under Sections 363/366/376 IPC. Usha @ Munni and Rahis were

acquitted of the charges. Being aggrieved, the appellant- Suraj has

preferred the appeal.

3. During the course of arguments, learned counsel for the

appellant on instructions from the appellant- Suraj stated that the appellant

has opted not to challenge the conviction under Sections 363/366/376

IPC. He however, prayed for modification of the order on sentence as the

appellant has already undergone sentence for about 6 years.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Since the appellant has not opted to

challenge the findings of the Trial Court on conviction under Sections

363/366/376 IPC, the order of conviction of the Trial Court stands

affirmed. Regarding order on sentence, counsel for the appellant stated

that the prosecutrix 'X' was a consenting party though out and had love

affair with the appellant. They had performed marriage. The prosecutrix

was compelled to give statement against the appellant under pressure from

her parents. The appellant was sentenced to undergo SI for seven years

under Section 376 IPC as the prosecutrix was below sixteen years of age.

Apparently, she was a consenting party. In her statement (Ex.PW-1/A),

she admitted at the first instance that she was in love with the appellant

and had married with him. No external or internal injuries were found on

her body. The prosecutrix did not raise any alarm for her kidnapping

though she remained in the company of the appellant for many days.

Nominal roll reveals that the appellant has undergone sentence for 4 years,

7 months and 15 days as on 20.01.2012. He earned remissions for 2

months and 21 days. The period has since been increased to about 6 years.

Learned APP has no objection if the appellant is ordered to be released for

the period already undergone by him in this case. There are special and

adequate reasons to modify the order on sentence and to award minimum

sentence of seven years. Prosecutrix was a consenting party and had even

performed marriage with the appellant.

5. Considering the facts and mitigating circumstances, the order

on sentence is modified and the appellant is ordered to be released for the

period already undergone by him in this case. The appeal stands disposed

of in the above terms. Pending applications also stand disposed of.

(S.P.GARG) JUDGE

MARCH 14, 2013 tr