Sunny vs The State (Govt. Of Nct Of Delhi)
2017 Latest Caselaw 5109 Del

$~ 23
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        Crl.A.No. 1688/14
         SUNNY                                          .........Appellant

                            Through: Mr. S.D. Windlesh, Advocate.

                                        Versus

         THE STATE (GOVT. OF NCT OF DELHI)                   .....Respondent

Through : Mr. Mukesh Kumar, APP for the State.

CORAM:

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL % ORDER 15.09.2017 Crl.M.B. No. 1071/17 (Suspension of Sentence)

1. By way of the present petition filed under Section 389 of the Criminal Procedure Code (hereinafter referred to as "Cr.PC."), the petitioner seeks Suspension of Sentence in case FIR No. 125/2011 under Sections 363/376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") registered at Police Station Kanjhawala, New Delhi.

2. The facts noted by the trial court are as under that on 24/05/2011 the prosecutrix (name withheld being a case U/s 376 IPC) alongwith her mother Kaushal Khatoon and father Mohd. Siraj came to the police station and disclosed about the rape committed upon her on 23/05/2011 at about 8:00 pm. The prosecutrix lives with her parents and six brothers and sisters in

village Madan Pur. She studies in the 4th standard and her classmate Ruksar who she often borrows books from lives very close to her. The petitioner, Sunny Pal, aged 20/21 years, about 2 weeks back, had called the prosecutrix to the Mandir of Madan Pur Dabbas in the evening, but she did not go. On 23/05/2011, the day of the alleged incident, at about 8:00 pm the prosecutrix was coming back from the house of her friend Ruksar, when Sunny forcibly caught her, pressed her mouth with his right hand and forcibly took her in Beriwala Bagh (Beriwala Garden) and raped her. Her mother, Kaushal Khatoon, went searching for her and reached the Bagh (garden). On seeing her, Sunny fled from there. She dressed her daughter, and their neighbor Yusuf, made a call to the police informing them about the incident. When they reached home, the police officials were there. They were taken to the Police Station where their statements were recorded U/s 164 Cr.P.C. and then the report was lodged U/s 376 I.P.C. The prosecutrix in the presence of her parents has been medically examined. Accused Sunny was arrested on 24/05/2017 at about 5:00 p.m. and his blood samples and clothes were taken into Police possession. Statements of the witnesses were recorded. Sealed exhibits were thereafter sent to F.S.L. On the basis of evidence and documentary record trial court convicted the appellant u/s 363 and 376 IPC and sentenced him to 7 years rigorous imprisonment and 10 years rigorous imprisonment, respectively.

3. Mr. Sitab Ali Chaudhary, the learned counsel for the petitioner has contended that the prosecution's story is a concocted story as the prosecutrix was in love with the appellant who in turn was in love with Ruksar and thus the prosecutrix implicated him in a false rape case; that the trial court erred in relying on the testimony of PW-1 (prosecutrix) despite improved version by the prosecutrix on different occasions and there are material contradictions in her statement; that there are serious contradictions in the statement of PW-1 (prosecutrix), PW- 5 (Kaushal Khatoon) mother of the prosecutrix and contended that the appellant was not guilty of rape and has solely been convicted on the testimony of the prosecutrix which does not inspire enough confidence and that the Ld Trial Court has failed to appreciate the scientific evidences that do not corroborate the story of the prosecution. To substantiate his contention the petitioner has relied upon the judgement of Amar Bahadur Singh Vs. State of U.P. reported in AIR 2011 SC 1352 wherein it was held "that story of rape has been cooked up on being caught red handed to salvage family honor" and the judgement of Harjit Singh Vs. State of M.P. reported in AIR 2010 SSC 1540 where the Apex Court held that "Conviction cannot be based on the sole testimony of the prosecutrix and prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test is as to whether the given story prima facie inspires confidence" The Ld. Counsel submitted that the appellant has suffered sentence

for more than 6 years i.e. more than half of the sentence and the appellant's family has suffered extreme hardships as the appellant is the only earning member of the family and thus a prayer has been made to order for suspension of sentence under sympathetic consideration.

4. Per Contra, Mr.Mukesh Kumar, APP for the State vehemently opposed the plea and contended that the petitioner is not liable to be granted a suspension of sentence as he has been actively involved in the commission of a serious offence which is henious in nature. Moreover, the victim resides in the same vicinity and there is every possibility that the accused may worry the complainant/victim.

5. I have heard the learned counsel for the parties at length and perused the material on record.

6. Admittedly, prosecutrix was a minor on the date of incident.

PW-1 (prosecutrix) during her examination in chief deposed as under :-

"Prior to leaving my home for collecting the note book from Ruksar, I had told to my younger sister if I cone late she can know my whereabouts from the house of Ruksar. As I got late, my sister went to the house of Ruksar to know my whereabouts and Ruksar told my sister that I had left with the note book. On late, my brother and mother came towards the side of house of Ruksar and when they made alarm on the way and near the Berry Bagh on hearing the scream

of my mother accused Sunny present in the Court today hold me down when I tried to escape from the clutches of accused. After some time my mother came at the spot with my father and I was escaped free from the clutches of accused. On seeing my mother and father other public persons, accused managed to escape by jumping over the boundary wall of the Berry Bagh and thereafter, I was taken to the home. Thereafter, my mother and father went to the house of Sunny to know about his whereabouts but accused did not found there. Thereafter, my father made a call at 100 number."

PW-5, Smt. Kaushal Khatoon during her examination in chief deposed on the same lines of PW-1 (prosecutrix) that :-

"On 23/05/2011, I alongwith my husband has left for work (labour) at about 7:00-7:30 AM at Kanjhawala. My six children (five daughters and one son) were at the home at that time. My daughter/prosecutrix (name/withheld) aged about 13 years was at home. At about 7:00 - 7:30 PM. I alongwith my husband returned to my home. My daughter Gulabsha aged about 7 years told me that prosecutrix aged about 13 years was taken by one boy forcefully. Thereafter I alongwith my husband & my younger daughter Gulabsha went in search of my daughter/ prosecutrix and when we reached Beriwala Bagh which was at a

distance of about ½ km. from my house. We saw accused present in the court today was lying on my daughter and on seeing us he ran away. At that time my daughter was naked and I dressed her. My daughter told me that accused had brought her forcefully and the accused had raped her. I brought my daughter to the house."

7. Perusal of the above testimonies alongwith other material testimonies inspires confidence. The testimony of PW-1 is found to corroborate the testimony of PW-5 and also with PW-3 (Ruksar) who is the classmate of prosecutrix. Both PW-1 and PW-5 have withstood the test of cross examination and deposed consistently and there testimonies are found to be natural and cogent. A conjoint reading of medical and scientific evidence further fortifies the conviction of the appellant.

8. As far as contention of learned counsel for the petitioner that he deserves Regular Bail as he has already undergone half of the period sentenced is concerned, the petitioner is convicted of committing a heinous offence against which no leniency can be taken and I do not consider it a fit case for granting Regular (Bail) on this alone. Having regard to the facts and circumstances of the case and the nature of offence and the manner in which the offence was committed, I do not find favour with the arguments raised by counsel for the petitioner thus not entitling him for suspension of sentence and releasing him on bail.

9. Accordingly, application stands dismissed.

10. Before parting with the aforesaid order, I deem it appropriate to mention that the order shall not affect the merits of the case.

SANGITA DHINGRA SEHGAL, J.

September 15, 2017