Mushtak @ Palo vs State
2019 Latest Caselaw 5354 Del

$~49
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of decision: 01.11.2019
+      CRL.REV.P. 1137/2019 and CRL.M.(BAIL) 1920/2019
       MUSHTAK @ PALO                                     ..... Petitioner
                   Through:            Mr. Jaspreet Singh, Adv.
                           versus
       STATE                                             ..... Respondent
                           Through:    Mr. Hirein Sharma, APP for State
                                       with SI Jhabbu Ram, PS - Hari Nagar
       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           J U D G M E N T (ORAL)

CRL.M.A. 39403/2019

1. Allowed, subject to all just exceptions.

2. This application is, accordingly, disposed of.

CRL.REV.P. 1137/2019

3. Vide the present petition, the petitioner seeks direction thereby to set

aside the main judgment dated 26.09.2019 passed by the learned Additional

Sessions Judge (West), Tis Hazari Courts, Delhi, whereby the Criminal

Appeal No.43/2018 has been dismissed. The petitioner further seeks

direction thereby to quash the order and judgment dated 06.01.2018 passed

by the learned Metropolitan Magistrate in FIR No. 226/2011, registered at

Police Station - Khyala.

4. As per the prosecution case, on 18.09.2011 at about 08.00 PM at B-

Block park, Raghubir Nagar, Delhi, appellant/ convict had carnal intercourse

which is against the order of nature with the victim (name withheld) aged

about 12 years. After investigation, charge-sheet was filed against the

petitioner and charge was framed under Section 377 IPC, to which he

pleaded not guilty and claimed trial. The prosecution examined eight

witnesses to prove its case and the petitioner/ accused has not examined any

defence witness.

5. Based upon the evidence adduced by the prosecution, the learned

Trial Court convicted the petitioner/ accused for the offence punishable

under Section 377 IPC for a period of three years simple imprisonment and

compensation of ₹20,000/- payable to the victim under Section 357 Cr.P.C.

In default of payment of compensation, the convict shall undergo further

simple imprisonment for a period of three months.

6. Learned counsel appearing on behalf of the petitioner/ accused

submits that the accused is presently 27 years of age and is a married man

and his wife is at the advance stage of pregnancy and submits that there is no

previous criminal record of the petitioner and has undertaken not to indulge

in any criminal activity of any sort in future. He submits that since the

petitioner has already undergone 18 months' incarceration, while

maintaining the conviction, the petitioner may be released on the period

already undergone.

7. Learned APP submits that if this Court is inclined to dispose of the

present petition on the period already undergone, then the petitioner/

accused may be directed to deposit an amount of ₹20,000/- to be paid in

favour of the victim as directed by the learned Trial Court.

8. Learned counsel for petitioner, on instructions, submits that the

compensation amount shall be paid in favour of the victim.

9. Accordingly, while maintaining the conviction against the present

petitioner, I hereby modify the order on sentence dated 06.01.2018 that the

petitioner shall be released on already undergone and on depositing the

amount of ₹20,000/- by way of demand draft in favour of the victim, as

directed by the learned Trial Court. On deposit of the amount, the Trial

Court is directed to release the said amount in favour of the victim.

10. In view of the above directions, the petition is disposed of. Pending

application is also disposed of.

11. Order dasti under the signatures of Court Master.

(SURESH KUMAR KAIT) JUDGE NOVEMBER 01, 2019/PB