Delhi High Court
Amarjeet vs State on 1 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.A.No. 1361/2017 in CRL.A. 580/2016
Order reserved on : 11th October, 2017
Order pronounced on : 1st November, 2017
AMARJEET ....Petitioner
Through: Mr. S.B. Dandapani, Advocate
Versus
STATE .....Respondent
Through: Ms. Anita Abraham, APP for
the State SI Satish Kumar,
P.S.Aman Vihar, Delhi
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
Crl.M.A.No. 1361/2017(Suspension of Sentence)
1. By way of the present application filed under Section 389 of the
Code of Criminal Procedure (hereinafter referred "Cr.PC."), the
petitioner seeks Suspension of Sentence in FIR No. 478/2014
under Sections 6 POCSO Act registered at Police Station Aman
Vihar, New Delhi. Status report is on record.
2. The facts noted by the Trial Court are that on 13.05.2014 at
about 7:50 pm, Smt. Urmila and her 7 years old daughter
(hereinafter referred to as „Child Victim) came to the P.S.,
where Smt. Urmila complained of sexual assault upon child
victim by her husband i.e. stepfather of the child victim. The
matter was entrusted to W/SI Manisha, who got the child victim
and her mother counseled through a NGO counselor and
thereafter recorded the statement of the complainant, to the
effect that after death of her first husband Kamal, she got
married to petitioner Amarjeet and from her previous wedlock
the child victim was born. The appellant had tried to commit
sexual assault upon the child victim on an earlier occasion also
and when the complainant was about to go to the P.S., the
appellant apologized and she forgave him with a warning to not
repeat the same action in the future. She further stated that on
13.05.2013, she had been working at a Panni Godown and on
that day, at about 3:30 pm, a lady in the neighborhood who
people called Nani, came there and informed her that she had
saved the child victim from the appellant who was about to
sexually assault upon her. Thereafter, she along with Nani
returned home, where she questioned the child victim who
narrated the entire incident to her. The appellant has escaped
meanwhile. Thereafter, she took the child victim to the P.S. and
the FIR was lodged. During investigation, child victim was
medically examined at SGM Hospital. Statement of the child
victim was recorded U/s 161 Cr.P.C. and then U/s 1614 Cr.P.C.
wherein she confirmed the act of the appellant.
3. Mr. S.B. Dandapani, the learned counsel for the appellant
contended that prosecution‟s story is a concocted story as the
complainant wanted to get rid of the appellant so that she could
remarry some other person; that the complainant deposed in her
earlier statement that on an earlier occasion also the appellant
had tried to commit sexual assault upon the child victim, yet
she did not report the case; that there is no medical evidence to
corroborate the sexual assault as alleged by the prosecutrix
against the appellant; that the Ld. Trial Court failed to
appreciate the medical opinion of PW-5 (Dr. Rachita, Sr.
Gynae) who examined the child victim on 13.05.2014 vide
MLC Ex. PW5/A, wherein it was reported that the hymen of the
patient was found intact which clearly establishes that no
offense of sexual assault had ever taken place on the child
victim; that there are contradictions in the testimony of PW-9
(Majida „Nani‟) on the occurrence of the act.
4. The Ld. Counsel further submitted that the appellant has
suffered sentence for 2 years of imprisonment and the family of
the appellant has suffered extreme hardships as the appellant is
the only earning member of the family and thus the sentence be
suspended.
5. Per Contra, Ms. Anita Abraham, APP for the State vehemently
opposed the bail application of the appellant as he has been
actively involved in the commission of a serious offence which
is heinous in nature.
6. I have heard the learned counsel for the parties at length and
perused the material on record.
7. Admittedly, prosecutrix was a minor on the date of incident.
PW-6 (prosecutrix) during her examination in chief deposed as
under :-
"Papa ne kacchi utaari thi. Unhone meri
kacchi utaari thi aur phir apni bhi kacchi
utaari thi thodi si. Woh ungli daalne wale
the. Woh niche ungli daalne wale the jahaan
se susu karte hain. Phir nani ne dekh liya.
Nani ne dhamkaaya tha. Papa ne pehle bhi
aisa kiya tha. Unhone ungli daali thi. Nani
ne dhamkaaya toh papa bhaag gaye the. Aur
kucch nahi hua. Bass yahihua."
8. PW-9 (Majida „Nani‟) during her examination in chief deposed
on the same lines of PW-6 (prosecutrix) that :-
"At about 12:30 noon, I was taking rest in
my room. I had made her children sleep
after lunch. At that time, Amarjeet was not
present in the house. I went to sleep. During
that period, Amarjeet went to his room. All
of a sudden, I heard alarm of victim P and
she was shouting (Papa mar gayi, papa mar
gayi, mujhe chhod do.) On hearing this, I
came out of my room and started knocking
the door of Urmila's room. There was some
open space in the door along the side of the
Chokhat, from where, I peeped inside and
saw that victim P was lying naked on the
floor and Amarjeet had removed her
undergarments ad he was forcibly putting
his finger in the private part of Victim P,
while holding her forcibly. Accused
Amarjeet was also in a naked condition at
that time. I raised alarm and and struck my
foot against the door, shouting "Ladki mar
jayegi." The accused Amarjeet opened the
door and ran out of the house. Victim P
started crying. I helped Victim P to wear her
clothes and at about 3:30 pm, went to the
godown along with Victim P, where her
mother was working. I informed Urmila
about the incident. I along with Urmila
returned back home. Her husband had
already fled away from the house. Since, I
was not feeling well, therefore Urmila along
with Victim Pwent to the Police Staton to
lodge the complaint. My statement was
recorded by the IO Manisha Madam."
9. Perusal of the above testimonies alongwith other material
testimonies inspires confidence. The testimony of PW-6 is
found to corroborate the testimony of PW-9. Both PW-6 and
PW-9 have withstood the test of cross examination and deposed
consistently and there testimonies are found to be natural and
cogent.
10. As far as contention of learned counsel for the petitioner that he
deserves Regular Bail as he has already undergone 2 years of
the period sentenced is concerned, the petitioner is convicted
for committing a heinous offence against which no leniency can
be taken.
11. Reference may be made to the judgement of the Apex Court in
Kalyan Chandra Sarkar vs. Rajesh Ranjan, reported in, 2004
(7) SCC 528),wherein the principles of granting or refusing bail
have been laid down :
"The law in regard to grant or refusal of
bail is very well settled. The court granting
bail should exercise its discretion in a
judicious manner and not as a matter of
course. Though at the stage of granting bail
a detailed examination of evidence and
elaborate documentation of the merit of the
case need not be undertaken, there is a need
to indicate in such orders reasons for prima
facie concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are:
a. The nature of accusation and the severity
of punishment in case of conviction and
the nature of supporting evidence.
b. Reasonable apprehension of tampering
with the witness or apprehension of threat
to the complainant.
c. Prima facie satisfaction of the court in
support of the charge."
12. Relying on the principles laid down by the Apex Court, the
aforementioned Sections, the allegations against the petitioners
and gravity of offense, this Court does not deem it fit to grant
Suspension of Sentence.
13. Accordingly, the prayer made in the application for Suspension
of Sentence is declined.
14. Application stands disposed of.
SANGITA DHINGRA SEHGAL, J.
NOVEMBER 01, 2017
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