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2013 DIGILAW 1334 (DEL)

Aditya @ Vicky v. State

2013-07-17

HIMA KOHLI

body2013
JUDGMENT : Hima Kohli, J. 1. The present application has been filed by the appellant under Section 389 Cr.P.C. praying inter alia for suspension of sentence in case FIR No.303/2011 registered under Sections 376/506 IPC at PS Rani Bagh. 2. By the impugned judgment dated 13.9.2012, the learned ASJ has held the appellant guilty for the offences under Sections 376 and 506 IPC and, vide order on sentence dated 24.9.2012, he has been convicted him to undergo rigorous imprisonment for a period of ten years and pay fine to the tune of Rs.52,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of six months and fifteen days. 3. As per the nominal roll of the appellant, against the aforesaid quantum of sentence, as on 15.12.2012, he had undergone sentence for a period of 5 months and 18 days and as on date, the appellant would have completed the sentence of one year. 4. Mr.B.S.Mathur, learned counsel for the appellant states that the impugned judgment is based on mis-appreciation of evidence inasmuch as the trial court has overlooked the delay between the date of the alleged incident, i.e., 20.10.2011 and the date of lodging of the FIR, which was at about 00.20 hours on 21.10.2011. He further states that the evidence placed on record does not establish penetration of the prosecutrix. Thirdly, it is stated that the serological report forward by the FSL does not support the case of the prosecution. In support of the his submissions, the learned counsel relies on the decision of the Supreme Court in the case of Sadashiv Ramao Hadbe vs. State of Maharashtra & Anr. Reported as (2006) 10 SCC 92 . 5. Counsel for the appellant contends that where there were no injuries that were found on the private parts of the prosecutrix, the doctor who had examined her, was unable to give any opinion about the alleged sexual intercourse and further, in the absence of any sperm on the swab of the vagina taken on the same day, benefit of doubt ought to have been given to the accused, as was done by the Supreme Court in the aforesaid decision. He also relies on the decision of the Supreme Court in the case of Narender Kumar vs. State (NCT of Delhi) reported as (2012) 7 SCC 171 , to contend that if the Court finds it difficult to accept the version of the prosecutrix on its face value, then it may search for evidence, direct or substantial, that would lend assurance to her testimony and in the absence of such an evidence, the accused ought to be acquitted. 6. Mr.Mathur states that in the present case, the prosecutrix had not attained the age of menarche and while examining the evidence, this aspect was not gone into by the trial court. Lastly, it is stated that there were material discrepancies which were overlooked by the trial court; as for example, in the complaint recorded by PS, Rani Bagh in DD No.3A, it was stated that the cousin brother of the prosecutrix had telephonically informed the police that his sister, the prosecutrix herein, had been kidnapped and was subjected to gang rape by some boys when she was returning from school, but subsequently, the statement of the prosecutrix had referred to the appellant alone and no one else. Learned counsel thus concludes that it is a fit case where the court ought to suspend the sentence during the pendency of the appeal. 7. Learned APP for the State vehemently opposes the present application and states that cogent evidence was placed on record by the prosecution and taking into consideration the ocular evidence as also the forensic evidence produced before it, trial court was justified in indicting the appellant. He asserts that the appellant had not been convicted purely on the testimony of the prosecutrix, but his conviction is based on other material evidence that was placed on record. He asserts that the appellant had not been convicted purely on the testimony of the prosecutrix, but his conviction is based on other material evidence that was placed on record. In support of his submission that absence of injuries on the body of the prosecutrix, cannot give any advantage to the accused and even if the hymen of the prosecutrix was found to be intact with no actual wound on her private parts, that itself can also not be treated as a conclusive proof of the fact that the prosecutrix had not been subjected to rape, reliance is placed by him on the decisions of the Supreme Court in the case of O.M. Baby (Dead) by LRs vs. State of Kerala, reported as JT (2012) (6) SC 117 and in the case of Ravi Kapur vs. State of Rajasthan, reported as JT (2012) (7) SC 480. 8. The Court has considered the submissions made by the counsels for the parties in the light of the impugned judgment. It may be noted at the outset that while considering an application for grant of suspension of sentence, the Court is not expected to examine the entire evidence produced before the trial court and weigh the same to arrive at a conclusive decision. Rather, the court is only required to satisfy itself as to whether the appellant has made out a prima facie case for grant of suspension of sentence during the pendency of the appeal. 9. In the present case, the trial court has recorded the fact that the prosecutrix, who was aged about 14 years at the relevant time and was studying in Class IX, was returning home from her school on 20.10.2011 at about 1.30 PM and when she had reached the street near a plastic factory, the accused, who was then 19 years of age and was earlier studying in the same school, had caught hold of her and had forcibly dragged her inside the factory where two workers were present. The said workers were threatened by the accused and they had run away. Thereafter, the accused had taken the prosecutrix inside the factory and threatened her not to raise any alarm. When the prosecutrix had tried to raise alarm, the accused had threatened to electrocute her and had raped her. 10. The said workers were threatened by the accused and they had run away. Thereafter, the accused had taken the prosecutrix inside the factory and threatened her not to raise any alarm. When the prosecutrix had tried to raise alarm, the accused had threatened to electrocute her and had raped her. 10. In the impugned judgment the trial court held that at the time of the incident, the prosecutrix was aged 14 years and 4 months, which was below the age of consent and further, when she was brought to the hospital with the alleged history of rape, she had specifically informed the doctor that the appellant, who was living near the place of incident, had committed rape on her. During the gynecological examination, the doctor had noted that she had finger marks on her left cheek thus establishing use of force on her at the time of rape. Further, the medical report of the prosecutrix had revealed that blood was found over the labia and her hymen was found to be ruptured, thus establishing rape. The trial court had also taken into consideration the serological report submitted by FSL, Rohini which showed the presence of human semen on the salwar of the prosecutrix. Based on the testimony of the prosecutrix and the medical and forensic evidence produced by the prosecution, the trial court has held that the appellant was guilty of the offence under Sections 376 and 506 of IPC. 11. While considering the application filed by the appellant for suspension of sentence, the Court is not expected to meticulously examine each and every piece of evidence to decide as to whether the same was sufficient for the trial court to have indicted the accused, unless there are glaring and blatant errors on the face of the record to demonstrate that the trial court had mis-appreciated the evidence or had ignored material facts and evidence, thus making the judgment and the sentence imposed, unsustainable. In the present case, the court is of the prima facie opinion that the impugned judgment has considered the evidence placed on record, including the testimony of the prosecutrix, and the medical evidence to convict the appellant and this is hardly the stage to test the evidence on the yardstick of the law laid down in that regard, which is an exercise that would be undertaken at the time of final arguments. 12. 12. Given the above facts, at this stage, the Court is not inclined to entertain the present application. Accordingly, the present application is dismissed.