Delhi High Court
Ganesh vs State on 18 December, 2019
*IN THE HIGH COURT OF DELHI AT NEW DELHI
%
+ Crl.A. No.1002/2002
Date of Decision: 18.12.2019
GANESH .....Appellant
Through: Mr. Sanjay Kumar, Adv. with
Appellant in Judicial Custody
versus
STATE ..... Respondent
Through: Ms. Meenakshi Dahiya, APP
AND
+ Crl.A. No. 798/2002
Date of Decision: 18.12.2019
KISMAT ALI .....Appellant
Through: Mr. M.A. Rahman, Adv. with
Appellant in Judicial Custody
Versus
THE STATE (GNCTD OF DELHI) ..... Respondent
Through: Ms. Meenakshi Dahiya, APP
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
1. Learned counsel for the appellant Ganesh in Crl.A.
No.1002/2002 submits that the appellant does not seek the appeal to be
decided on merits and seeks that the appellant be released on the
period of detention already undergone by him. To similar effect is the
submission made on behalf of Kismat Ali, the appellant of Crl.A.
No.798/2002.
2. In as much as the prosecutrix i.e. the complainant of FIR
No.251/2002 under Sections 366/376/34 of the Indian Penal Code,
1860 vide her affidavit dated 21.5.2019 which is placed on the records
of the Crl.A. No.1002/2002 stated that she had got married to Ganesh,
the appellant of Crl.A. No.1002/2002 on 1.1.2003 and lived with him
for about two years which factum of the prosecutrix having wanted to
get married to the appellant Ganesh is also borne out through
proceedings dated 9.12.2003 in Crl.A. No.1002/2002 wherein the
State too has stated that it had no objection to the grant of interim bail
to Ganesh for the purpose of marriage with the prosecutrix and in
relation to which the prosecutrix and the appellant Ganesh had filed
their affidavits, the substantive sentence was suspended for a period of
four months from the date of release of the appellant Ganesh on the
terms and conditions as imposed vide order dated 4.12.2003. The
proceedings dated 5.8.2004 in Crl.A. No. 1002/2002 indicate to the
effect that the prosecutrix who was present in person on 5.8.2004
verifies that the appellant Ganesh had married her and she also prayed
that the appellant may be released so that he may make arrangement
for her stay and to set up their matrimonial home and Ganesh was
released on bail for a period of three months as per terms and
conditions imposed vide order dated 5.8.2004.
3. Vide the order dated 16.1.2006 the sentence of the appellant of
Crl.A. No.1002/2002 was suspended on his execution of the personal
bond in the sum ofRs.20,000/- with one surety in the like amount.
The appeals were thereafter taken up for final hearing on 29.3.2019
when the appellants did not come and thereafter non-bailable
warrants were issued against them and the appellants were arrested
and produced before the learned Metropolitan Magistrate who
remanded them to judicial custody as indicated by order dated
6.5.2019 and thereafter the appellants appear to have been in custody.
4. The prosecutrix through her affidavit has submitted that after
her marriage with the appellant Ganesh she lived with the appellant
Ganesh for about two years and thereafter because of temperamental
differences they consented to separate from each other and live their
lives peacefully and thus after separation, the prosecutrix married
Rajender Kumar son of Late Raj Kumar on 18.5.2006 who is
presently residing at Malaysia and that the prosecutrix was blessed
with a male child Karan born on 12.12.2007. The affidavit of the
prosecutrix also reflects that after separation the appellant Ganesh in
Crl.A. No.1002/2002 also got married with Reema and has been
blessed with two children. The prosecutrix has further submitted that
she is leading a peaceful life and has no grudge against the appellant
and does not wish to see him serving the sentence any more and has no
objection if the conviction of the appellant is reduced to the sentence
undergone. She stated that the contents of the affidavit had been
explained to her in vernacular. The proof of identity of the prosecutrix
is attached with her affidavit dated 21.5.2019. The prosecutrix was
present on 3.9.2019 and was also represented by her counsel and on
behalf of the State.
5. Vide her affidavit submitted by the prosecutrix she stated
therein to the effect that she has no objection to the period of
detention is being reduced to the period he has already undergone, in
view of the factum that she has since re-married and that the appellant
Ganesh has also re-married and they both have children and the State
sought time for verification of the identity of the prosecutrix and SI
Vinod Kumar who is present today and was also present on 3.9.2019
placed on record the status report dated 20.10.2019 whereby it was
informed by the SI Vinod Kumar that he had contacted the prosecutrix
on 3.9.2019 in the premises of this Court and had enquired qua her
affidavit and during enquiry she acknowledged the affidavit and
stated that she had signed the same and presently she is residing
somewhere in Dehradun and refused to give her complete address and
also asked to not to visit her addresses at Sangam Vihar, Delhi as it
would affect her family life.
6. As per the status report submitted under the signatures of the
SHO P.S. Kalkaji, the verification is stated to have been conducted by
SI Vinod Kumar who in reply to a specific Court query now put to
him states that as per the status report it is indicated that the
prosecutrix has left the present spouse Mr. Rajender also who
identified the copy of the aadhar card and the photograph of his wife
and stated that he had married the prosecutrix and had two children
with her and that the prosecutrix had left him and his family since
2011 and that he is not aware of the present whereabouts of the wife.
7. The appellant in Crl.A. No. 1002/2002 Ganesh vide the
impugned judgment dated 12.9.2002 of the learned ASJ, New Delhi
in FIR No.251/2002 P.S. Kalkaji was convicted for the offences
punishable under Sections 376(2)(g)/366/34 of the Indian Penal Code,
1860 and vide the impugned order of sentence dated 13.9.2002 was
sentenced to undergo rigorous imprisonment for seven years and to
pay a fine of Rs.3,000/- or in default to undergo simple imprisonment
for a period of three months under Section 376(2)(g) of Indian Penal
Code, 1860 and also sentenced to rigorous imprisonment for three
years and to pay a fine of Rs.2000/- or to undergo simple
imprisonment for two months in default under Section 366 of Indian
Penal Code, 1860 read with Section 34 thereof.
8. Mr. Kismat Ali, the appellant of the appeal in Crl.A. No.
798/2002 was vide the same impugned judgment convicted under
Section 376(2)(g) of the Indian Penal Code, 1860 read with Section
34 Indian Penal Code, 1860. However vide the impugned order on
sentence dated 13.9.2002 the appellant Kismat Ali was observed to
have personally not raped the prosecutrix and was thus held entitled to
lesser sentence than that of the appellant Ganesh and thus he was
sentenced to undergo rigorous imprisonment for five years and to pay
a fine of Rs.3,000/- or in default to undergo simple imprisonment for
three months under Section 376(2)(g) of the Indian Penal Code,
1860and the appellant Kismat Ali also was sentenced to rigorous
imprisonment for a period of three years and to pay a fine of
Rs.2000/- or to undergo simple imprisonment for two months in
default qua the offence punishable under Section 366 of the Indian
Penal Code, 1860 read with Section 34 of the Indian Penal Code,
1860 with it having been directed that the period of detention already
undergone both by Kismat Ali and Ganesh shall be set of against the
sentence imposed on the them with the sentences having been directed
to be run concurrently.
9. The nominal roll of the appellant Ganesh as received from the
Superintendent Jail, Delhi dated 30.1.2019 indicates that the appellant
Ganesh had undergone a period of three years two months and 19 days
of incarceration with remission as on 26.1.2006 being of 9 months
and 15 days with the unexpired portion of sentence dated as on
30.1.2019 is two years eleven months and twenty six days.
10. The appellant of the Crl.A. No.798/2002 Kismat Ali as per the
nominal roll dated 3.8.2019 is indicated to have undergone a period of
3 years 2 months and 16 days with remission earned for 8 months and
6 days as on the date 3.8.2019 with the unexpired portion of the
sentence being one year one month and eight days.
11. In view of the affidavit that has been filed by the prosecutrix
though only qua the appellant Ganesh, taking into account the
impugned sentence which has granted a lesser sentence to Kismat Ali,
it is considered appropriate that both the appellants are treated at par
in view of the affidavit of the prosecutrix and the impugned order on
sentence.
12. In view of the affidavit of the prosecutrix, contents of which
have been verified by the Investigating Officer SI Vinod Kumar, it is
considered appropriate in the interest of justice that both the appellants
are allowed to be released on the period of detention already
undergone by them and the deposit of the fine as imposed by the
impugned order on sentence qua both the appellants is waived. It is
made expressly clear that the peculiar facts and circumstances of the
instant appeal, which bring forth the release of the appellant Ganesh
vide order dated 9.12.2003 to arrange for his marriage with the
prosecutrix, and the marriage of the prosecutrix with the appellant
Ganesh, whereafter she lived with him for two years on suspension of
sentence as on 16.01.2006 are germane and the cause of the reduction
of the sentence imposed on the appellants in the present two appeals
and the judgment hereinabove applies to the peculiar facts of the case
alone.
Copy of this judgment be sent to the Superintendent Jail, Delhi.
ANU MALHOTRA, J
DECEMBER 18, 2019
aj
