State vs Sumit Kumar
2016 Latest Caselaw 1289 Del

$-21
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                DECIDED ON : 18th FEBRUARY, 2016

+                                 CRL.L.P. 313/2013

      STATE                                               ..... Petitioner
                         Through :     Mr.Vinod Diwakar, APP.


                         versus
      SUMIT KUMAR                                         ..... Respondent
                         Through :     Mr.Pankaj Batra, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

1. State seeks leave to file appeal against a judgment dated

04.01.2013 of learned Additional Sessions Judge in Sessions Case

No.172/2011 arising out of FIR No.208/2011 under Section 376 IPC PS

Chhawla by which the respondent was acquitted of the charge. Petition is

contested by the respondent.

2. I have heard the learned counsel for the parties and have

examined the file. Learned Addl. Public Prosecutor urged that the Trial

Court did not appreciate the evidence in its true and proper perspective.

The physical relation that took place in January, 2008 with the prosecutrix

for the first time were against her wishes and she was not a willing and

consenting party. Subsequently, her consent to have physical relations was

obtained on the false promise of marriage. The respondent did not fulfill

his promise and assurance and opted to marry another girl. Statements of

the witnesses and other material proved on record were not appreciated

correctly by the Court below. Learned counsel for the respondent urged

that the impugned judgment is based upon fair appreciation of the

evidence and needs no intervention. The prosecutrix was major aged

around 30 years; she was an educated lady. Both, the prosecutrix and the

respondent were on friendly terms and physical relations between the two

(if any) were with their free consent. It was one-sided love and the

respondent never gave any promise to marry the victim any time.

Admitted e-mails sent by the prosecutrix to the respondent confirm this.

3. It is the specific case of the victim that her consent to have

physical relations was obtained on the promise to marry on various

occasions at different places. E-mails are not to be read in isolation. The

respondent has not denied physical relations with the petitioner albeit with

consent. In 313 Cr.P.C. statement, the respondent, however, categorically

denied if he had any physical relation with the prosecutrix or that it was

with her free consent. As the first appellate Court, this Court while dealing

with an appeal against acquittal is entitled to scan through and if need be

to re-appreciate the entire evidence. Arguments urged by the respondent's

learned counsel are primarily on merits which would be considered at the

time of final disposal of the appeal. At this stage, refusal of leave to

appeal would have the effect of foreclosing the right once for all.

4. In the light of above discussion, this Court finds it a fit case

to grant leave to State to file the appeal.

5. Observations in the order shall have no impact on the merits

of the case.

CRL.A.__________/2016 (to be numbered)

1. Response, if any, shall be filed before the next date of

hearing with advance copy to the learned Addl. Public Prosecutor for the

State.

2. For disposal, renotify on 13th May, 2016.

(S.P.GARG) JUDGE FEBRUARY 18, 2016 / tr