Delhi High Court
Ashish Windwani vs State (Nct Ofdelhi) on 12 October, 2022
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 10.10.2022
Judgment delivered on: 12.10.2022
+ CRL.M.(BAIL) 1044/2022 in CRL.A. 416/2022
ASHISH WINDWANI ..... Appellant
Through: Mr. N. Hariharan, Senior Advocate
with Mr. Bharat Chugh, Mr. Siddharth
Shiva Kumar, Mr. Siddarth S. Yadav,
Mr. Varun Deswal, Ms. Punya Rekha
Angara, Mr. Prateek Bhalla, Mr.
Sharian Mukherji, Mr. Rahul, Mr.
Kaushal Kaushik and Mr. Adab
Ahmad, Advocates.
versus
STATE (NCT OFDELHI) ..... Respondent
Through: Mr. Aman Usman, APP for State.
Counsel for complainant (appearance
not given).
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
ANOOP KUMAR MENDIRATTA, J.
CRL.M.(BAIL) 1044/2022
1. An application under Section 389 read with Section 482 Cr.PC has
been preferred on behalf of the appellant for suspension of sentence and
release of the appellant on bail during the pendency of appeal.
2. The appellant has preferred the appeal against the judgment dated
02.07.2022 and order on sentence dated 13.07.2022 passed by the learned
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
ASJ, Patiala House Courts, New Delhi in FIR No. 684/2015 under Sections
376(2)(n)/313 IPC registered at Police Station R.K. Puram whereby he has
been sentenced to undergo rigorous imprisonment of 10 years for the offence
punishable under Section 376 (2)(n) IPC and directed to pay fine of Rs.6
lakhs (in default of payment of fine to undergo SI for one year). However,
the appellant stands acquitted of the offence under Section 313 IPC.
3. Learned counsel for appellant submits that there is patent infirmity in
convicting the accused as crucial evidence in favour of appellant has been
overlooked and challenges the impugned judgment on following grounds:-
(i) That the learned Trial Court erred in concluding that appellant
obtained prosecutrix's consent for sexual intercourse on a false promise of
marriage.
(ii) That there is patent illegality in the impugned judgment as the glaring
lacunas in prosecution evidence have been overlooked. It is also pointed out
that there is overwhelming unrebutted evidence on record that the
prosecutrix herself had written blogs which were posted on social media that
she did not believe in the institution of marriage.
(iii) That the appellant/applicant had met the complainant/prosecutrix on a
social media application 'Tinder', which is known for casual dating. As
such, the prosecutrix herself did not believe in the idea of marriage. Further,
it is improbable by her conduct and circumstances on record that she was
misled on alleged promise of marriage.
(iv) That there is overwhelming evidence on record that the prosecutrix
knew that the appellant was already married having two children which
falsifies the theory of alleged promise to marry. Reliance in this regard is
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
also placed upon the testimony of DW-3 (wife of the appellant). The name of
the children is also stated to have been engraved on the forearm of the
appellant in the form of permanent tattoos and, as such, it was unlikely that
the prosecutrix did not notice the same. The prosecutrix/complainant is
stated to have simply feigned ignorance with regard to aforesaid piece of
evidence during cross-examination. The incident of alleged sexual encounter
on both 26.05.2015 and 10.06.2015 has been denied and it is submitted that
there is no corroborative evidence to infer the allegations of rape.
(v) That no-corroborative evidence was collected from Hyatt Hotel qua
the alleged sexual encounter, though the prosecutrix is alleged to have bled
during sexual assault as she was having menstrual cycle. It is further
submitted that stay at Hyatt Hotel on 26.05.2015 was only at the behest of
the complainant/prosecutrix. Further, the evidence qua the alleged abortion
undertaken by the prosecutrix at behest of appellant is stated to be far from
sterling and the presence of the appellant at the time of abortion does not
stand confirmed. The testimony of the prosecutrix is further stated to be
unworthy of belief in the absence of specific details of the various alleged
meetings and on account of improvements in her testimony.
(vi) That the present FIR was lodged after a delay of about 88 days and no
explanation is forthcoming in this regard.
(vii) That the learned Trial Court acquitted the appellant under Section 313
IPC disbelieving the testimony of the prosecutrix and concluded that the
prosecutrix herself consented for termination of alleged pregnancy. The
learned Trial Court is stated to have erred in invoking the presumption under
Section 114 of the Indian Evidence Act.
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
(viii) That the report of defence expert DW-2 examined on behalf of the
appellant is stated to have been wrongly ignored by the learned Trial Court.
Reliance is further placed upon the judgments passed in Uday Vs.
State of Karnataka, (2003) 4 SCC 46, X (Assumed Name) Vs. State & Anr.,
Crl. Rev. P. 110/2017, Gravit Indora Vs. NCT of Delhi, 2015 SCC OnLine
Del 9673, Babu Vs State of Kerela, 2013 SCC OnLine Ker 24124, Rai
Sandeep @ Deepu Vs. State of NCT of Delhi, (2012) 8 SCC 21, Gravit
Indora Vs. State of NCT of Delhi, 2015 SCC OnLine Del 9673, Narender
Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171, Rajesh Namdeo
Mhatre v State of Maharashtra, (2002) 4 Mh LJ 266, Chinniah Server v
State of Madras [And Vadivelu Thevar v State of Madras - same case],
AIR 1957 SC 614, Rachna Singh Vs. State, 2019 SCC OnLine Del 8519,
Ganesan Vs. State, (2020) 10 SCC 573, Narender Kumar Vs. State, (NCT
of Delhi), (2012) 7 SCC 17, Sadashiv Ramrao Hadbe v State of
Maharashtra, (2006) 10 SCC 92, Rai Sandeep @Deepu Vs. State of NCT
of Delhi, (2012) 8 SCC 21, Kanan and Ors. Vs. State of Kerela, (1979) 3
SCC 319, Dana Yadav Vs. State of Bihar, (2002) 7 SCC 295, Padum
Kumar Vs. State of Uttar Pradesh, (2020) 3 SCC 35, Dudh Nath Pandey v
State of Uttar Pradesh, 1981 2 SCC 166, Pradeep Saini Vs. State, 2009
SCC OnLine Del 2803, Aiyali Vs. State Bank of India, 1993 SCC OnLine
MP 252, Rajesh Patel Vs. State of Jharkhand, (2013) 3 SCC 791, Babu
Singh v State of UP, (1978) 1 SCC 579, Angana v State of Rajasthan,
(2009) 3 SCC 767, Atul Tripathi v State of UP, (2014) 9 SCC 177 and
Bhagwan Rama Shinde Gosai v State of Gujarat, (1999) SCC (Cri) 553.
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
Learned counsel for appellant also submits that father of the appellant
requires dialysis on daily basis. It is also claimed that the appellant is the
father of two daughters, who are dependent upon the appellant for their
education and life.
4. On the other hand, the application has been vehemently opposed by
the learned APP for the State along with the learned counsel for the
complainant. It is pointed out by the learned APP for the State that the
complainant/prosecutrix was duly examined at Safdarjung Hospital and her
statement under Section 164 Cr.PC was also recorded wherein she supported
her version as given in the complaint. The appellant is stated to have misled
for sexual intercourse on a false promise of marriage. It is also submitted that
reliance could not be placed upon the social posts/blogs by the prosecutrix as
the thought process could be changing and the same does not preclude from
believing that the prosecutrix was duped by false promise. It is further urged
that the prosecutrix was not aware of the marital status of the appellant and
the testimony of the wife of the appellant DW-3 was rightly rejected. The
delay in registration of FIR is stated to have been duly explained by the
prosecution.
5. I have given considered thought to the contentions raised.
It may be reiterated that the Appellate Court, at the stage of
suspension of sentence and release on bail till disposal of appeal, has to
examine if there is any patent infirmity in the order of conviction that renders
the conviction prima facie erroneous. The evidence is not to be re-assessed
or re-analyzed to suspend the execution of the sentence. The detailed
observations on merits of the case are not called for, at this stage lest it
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Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
prejudices the case of the petitioner but the matter has to be seen in the light
of settled principles of law.
6. Reverting back to the facts of the present case, it may be observed that
the detailed submissions have been made on behalf of the appellant pointing
out that the factum of marriage of the appellant was already known to the
prosecutrix/complainant. Further, the blogs/posts on the social media put by
the complainant/prosecutrix appear to reflect that she had reservations about
institution of marriage and supported the idea of live-in relationship. The
aforesaid observations need to be kept in perspective since the blogs had
been made prior to the alleged reporting of the incident. It appears that
sexual encounter initially at Hyatt Hotel on 26.05.2015 was completely
voluntary. The evidence relating to incident dated 10.06.2015 also requires a
deeper scrutiny in the light of defence evidence led on behalf of the
appellant. It may be preposterous to make observations in detail at this stage
but the evidence led by the appellant does require consideration. At this
stage, even if the evidence is not to be re-assessed or re-analyzed for the
purpose of execution of sentence but the infirmities which have been pointed
out on record need consideration. It may also be noticed that the disposal of
the appeal is likely to take some time.
7. Having regard to the evidence on record and the infirmities pointed
out by the learned counsel for the appellant, I am of the considered opinion
that the sentence of the appellant be suspended till the disposal of appeal and
he be admitted to bail on furnishing a personal bond in the sum of
Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties in the
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Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
like amount to the satisfaction of the learned Trial Court and subject to the
following conditions:
(i) The appellant shall provide his mobile number to the Investigating
Officer (IO) concerned/SHO concerned/concerned trial court at the time of
release, which shall be kept in working conditions at all times. The appellant
shall not switch-off, or change the same without prior intimation during the
period of his bail;
(ii) The appellant shall not indulge in any criminal activity or any illegal
activities during the bail period; and
(iv) The appellant shall be released on bail, subject to deposit of fine
amount.
Application for suspension of sentence is accordingly allowed. The
observations herein have been made only for purpose of consideration of
application for suspension of sentence and shall have no bearing on the final
disposal of appeal.
A copy of this order be forwarded to the Superintendent Jail and
learned Trial Court for information and compliance.
CRL.A. 416/2022
List in due course.
(ANOOP KUMAR MENDIRATTA)
JUDGE
October 12, 2022/A
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:12.10.2022
17:44:51
