Back
2017 Supreme(Del) 3354
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANGITA DHINGRA SEHGAL, J.
Amarjeet – Petitioner
Versus
State – Respondent
Crl.M.A.No. 1361 of 2017 in CRL.A. 580 of 2016
Decided On : 01-11-2017
For the Petitioner:Mr. S.B. Dandapani, Advocate
For the Respondent: Ms. Anita Abraham, APP for the State SI Satish Kumar, P.S.Aman Vihar, Delhi
The severity of the offense and the credibility of testimonies are crucial factors in determining the grant of Suspension of Sentence in serious offenses.
Headnote:
Suspension of Sentence - Sexual Assault - POCSO Act - Section 389 Cr.P.C. - 6 POCSO Act - 161 Cr.P.C. - 1614 Cr.P.C. - 2004 (7) SCC 528
Fact of the Case:
The case involved an application for Suspension of Sentence under Section 389 of the Code of Criminal Procedure in a sexual assault case under the POCSO Act. The victim, a minor, alleged sexual assault by her stepfather, leading to the filing of an FIR. The appellant sought suspension of the sentence, citing hardships faced by his family.
Finding of the Court:
The court found the testimonies of the victim and a witness to be consistent and credible, leading to the conclusion that the sexual assault had occurred. The court also cited the severity of the offense and the principles laid down by the Apex Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan, emphasizing the need for reasons for granting bail in serious offenses.
Issues: The issues revolved around the credibility of the victim's testimony, medical evidence, and the severity of the offense in determining the suspension of the sentence.
Ratio Decidendi: The court's decision was influenced by the consistency and credibility of the testimonies, the severity of the offense, and the principles laid down by the Apex Court regarding the grant of bail in serious offenses.
Final Decision: The court declined the application for Suspension of Sentence, citing the severity of the offense and the principles laid down by the Apex Court.
Crl.M.A.No. 1361/2017(Suspension of Sentence)
1. By way of the present application filed under Section 389 of the Code of Criminal Procedure (hereinafter referred “Cr.PC.”), the petitioner seeks Suspension of Sentence in FIR No. 478/2014 under Sections 6 POCSO Act registered at Police Station Aman Vihar, New Delhi. Status report is on record.
2. The facts noted by the Trial Court are that on 13.05.2014 at about 7:50 pm, Smt. Urmila and her 7 years old daughter (hereinafter referred to as ‘Child Victim) came to the P.S., where Smt. Urmila complained of sexual assault upon child victim by her husband i.e. stepfather of the child victim. The matter was entrusted to W/SI Manisha, who got the child victim and her mother counseled through a NGO counselor and thereafter recorded the statement of the complainant, to the effect that after death of her first husband Kamal, she got married to petitioner Amarjeet and from her previous wedlock the child victim was born. The appellant had tried to commit sexual assault upon the child victim on an earlier occasion also and when the complainant was about to go to the P.S., the appellant apologized and she forgave him with a warning to not repeat the same action in the future. She further stated that on 13.05.2013, she had been working at a Panni Godown and on that day, at about 3:30 pm, a lady in the neighborhood who people called Nani, came there and informed her that she had saved the child victim from the appellant who was about to sexually assault upon her. Thereafter, she along with Nani returned home, where she questioned the child victim who narrated the entire incident to her. The appellant has escaped meanwhile. Thereafter, she took the child victim to the P.S. and the FIR was lodged. During investigation, child victim was medically examined at SGM Hospital. Statement of the child victim was recorded U/s 161 Cr.P.C. and then U/s 1614 Cr.P.C. wherein she confirmed the act of the appellant.
3. Mr. S.B. Dandapani, the learned counsel for the appellant contended that prosecution’s story is a concocted story as the complainant wanted to get rid of the appellant so that she could remarry some other person; that the complainant deposed in her earlier statement that on an earlier occasion also the appellant had tried to commit sexual assault upon the child victim, yet she did not report the case; that there is no medical evidence to corroborate the sexual assault as alleged by the prosecutrix against the appellant; that the Ld. Trial Court failed to appreciate the medical opinion of PW-5 (Dr. Rachita, Sr. Gynae) who examined the child victim on 13.05.2014 vide MLC Ex. PW5/A, wherein it was reported that the hymen of the patient was found intact which clearly establishes that no offense of sexual assault had ever taken place on the child victim; that there are contradictions in the testimony of PW-9 (Majida ‘Nani’) on the occurrence of the act.
4. The Ld. Counsel further submitted that the appellant has suffered sentence for 2 years of imprisonment and the family of the appellant has suffered extreme hardships as the appellant is the only earning member of the family and thus the sentence be suspended.
5. Per Contra, Ms. Anita Abraham, APP for the State vehemently opposed the bail application of the appellant as he has been actively involved in the commission of a serious offence which is heinous in nature.
6. I have heard the learned counsel for the parties at length and perused the material on record.
7. Admittedly, prosecutrix was a minor on the date of incident. PW-6 prosecutrix) during her examination in chief deposed as under :-
“Papa ne kacchi utaari thi. Unhone meri kacchi utaari thi aur phir apni bhi kacchi utaari thi thodi si. Woh ungli daalne wale the. Woh niche ungli daalne wale the jahaan se susu karte hain. Phir nani ne dekh liya. Nani ne dhamkaaya tha. Papa ne pehle bhi aisa kiya tha. Unhone ungli daali thi. Nani ne dhamkaaya toh papa bhaag gaye the. Aur kucch nahi hua. Bass
