Delhi High Court - Orders
Alok Kumar Dubey vs State on 16 March, 2020
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 280/2020
ALOK KUMAR DUBEY ..... Appellant
Through Mr.Rajesh Kajla, Adv.
versus
STATE ..... Respondent
Through Mr. Hirein Sharma, APP for State.
SI Usha Rai, PS Bindapur.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
% 16.03.2020 Crl. M.A. 5537/2020
1. Allowed, subject to all just exceptions.
2. Application is allowed and disposed of.
Crl.A.280/20203. Admit.
4. Digital Trial Court Record be requisitioned.
5. List in due course.
Crl.M.(Bail) 442/2020
6. Vide the present application, applicant/appellant seeks suspension of sentence awarded by Trial Court vide order on sentence whereby applicant has been sentenced to undergo RI for a period of 10 years and a fine of ₹3,000/- for offence punishable under section 6 of POCSO Act and in default of payment of fine, he shall further undergo SI for a period of 6 months.
7. He is further sentenced to undergo RI for 5 years and fine of ₹2,000/- for offence punishable under section 328 IPC and in default of payment of fine, he shall further undergo SI for a period of 6 months.
8. He is further sentenced to undergo RI for 6 months for offence punishable under section 506 IPC.
9. All the above sentences shall run concurrently.
10. Case of prosecution is that in the year 2012, the child victim along with her family used to reside on rent in the house of father of accused/appellant. Child Victim alleged that in the month of June 2012, accused on the pretext of showing books took her to his room on first floor of house and gave her a sedated drink. She felt numbness, however, remembered that accused removed her clothes and sexually assaulted her. After regaining consciousness, she was threatened by accused not to disclose and thereafter he raped her 2-3 times and showed her a video clip in which he was raping her. After some time, her family vacated the tenanted premises of appellant's father and went to live at Rajapuri.
11. It is further alleged that in the month of November, she felt pain in her stomach. Appellant took her to his mother who got her ultrasound conducted which confirmed her pregnancy. Money was demanded by appellant and other accused and she was threatened. She stole Rs.50,000/- from her house and gave it to accused Pan Kumari and she was taken to various hospitals and finally on 19.03.2012, she was taken to a hospital at Janakpuri by all the accused and abandoned her there as appellant came to know that her father had gone to learn about her condition.
12. On 06.08.2013, charges were framed against appellant under Section 6 r/w 5(h)(j-II)(L) of POSCO Act and under section 328/384/34 IPC. The other accused were charged with only section 384/34/506 IPC.
13. Case of the applicant/appellant is that POCSO Act is not applicable in the present case as the offence alleged by the child victim has occurred prior to 14.11.2012 when the POCSO Act came into force.
14. To this effect, reliance has been placed on Article 20(1) of Constitution which reads as under:
"Article 20 (1) in the Constitution of India 1949
20. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the same offence more than once (3) No person accused of any offence shall be compelled to be a witness against himself."
15. Counsel for the appellant submits that in deposition before Trial Court recorded on 01.10.2013, prosecutrix deposed that in the month of June, 2012, accused Alok came to her house i.e. First Floor and the said accused told her that he was having some books of 12th standard and same were kept in his house. She alongwith the said accused came downstairs and went inside the house of appellant. The said accused after showing the books went inside the kitchen and brought a cold drink and had given the same to her. After consuming the same, her head started spinning and she felt numbness. Thereafter she only remembered that appellant had taken off her clothes and has inserted his Penis into her vagina and she felt pain.
16. She further deposed that appellant had committed rape upon her 2-3 times in his house. In the month of November, she felt pain in her stomach and appellant took her to his mother.
17. In cross-examination which was conducted on 12.11.2013, she deposed that her family vacated tenanted house in the month of August 2012 whereas alleged offence occurred prior to 14.11.2012 i.e. the date of commencement of POCSO Act. Moreover, victim has categorically stated in her examination-in-chief that she was sexually assaulted and raped by appellant for the first time in the month of June 2012 and 2-3 times thereafter.
18. She deposed in her further cross-examination that the tenanted house was vacated in the month of August 2012. Thereafter, no incident of rape has been reported by the victim in the month of November 2012.
19. Learned APP on behalf of State has opposed the present application by stating that last intercourse took place on 21.11.2012 whereas POCSO Act came into force w.e.f. 14.11.2012.
20. The fact remains that in the MLC of the child victim, age of the foetus has been shown as 18-20 weeks and in the discharge summary, final diagnosis has been mentioned as "Midtrimester abortion on 22.03.2012". Accordingly, if the age of the foetus is calculated as per 20 weeks then the pregnancy commences from October 2012 which is prior to the date of notification of POCSO Act on 14.11.2012. Moreover, prosecutrix deposed before Trial Court that she was sexually assaulted and raped by appellant for the first time in the month of June 2012 and 2-3 times thereafter. They vacated the house of the appellant in the month of August, 2012 and thereafter, no offence of sexual assault or rape has been alleged by the victim, in the month of November, 2012.
21. Taking into account the above material on record and the fact that hearing of appeal shall take substantial time, this Court is inclined to suspend the sentence of appellant during the pendency of the appeal.
22. Accordingly, applicant shall be released on bail on his furnishing personal bond in the sum of ₹20,000/- with one surety of the like amount to the satisfaction of Trial Court.
23. Applicant shall not involve himself in any other case and in the event of any report against him, this Court would consider the desirability of cancelling the suspension of sentence. Applicant shall also ensure his presence at the time of hearing of the appeal.
24. The application is, accordingly, allowed and disposed of.
25. Order dasti under the signatures of Court Master.
26. Copy of this order be transmitted to the Jail Superintendent and concerned Trial Court for necessary compliance.
SURESH KUMAR KAIT, J MARCH 16, 2020/ab