Delhi High Court
Sunny vs The State (Govt. Of Nct Of Delhi) on 15 September, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~ 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
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 1 of 7
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.
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 2 of 7
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
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 3 of 7
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
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 4 of 7
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
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 5 of 7
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.
Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 6 of 7
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 Crl.M.B.1071.17 in Crl.A.No.1688.2014 Page 7 of 7