* IN THE HIGH COURT OF DELHI AT NEW DELHI DATE OF DECISION:
1. t November, 2012 % + CRL.A. 1222/2012 LALIT YADAV ..... Appellants Through : Mr.Ramesh Gupta,Sr.advocate With Mr.Anil Panwar, Advocate. versus STATE (NCT OF DELHI) Through : ..... Respondent Ms.Rajdipa Behura, APP for State CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J (ORAL) Crl.A.1222/2012 1. Admit.
2. List on 06.12.2012.
3. Trial Court record be requisitioned and made available at least three days prior to next date of hearing. Crl.M.(B) No.1891/2012 1. This is an application moved under Section 389 Cr.P.C., for suspension of sentence and grant of bail during the pendency of appeal.
2. At the outset, as the learned trial court has awarded less than the minimum prescribed sentence to the appellant in a case under Section 376 IPC without giving any special reasons for not awarding the minimum prescribed sentence, the State has been asked to inform whether any appeal has been preferred for enhancement of the sentence in this case.
3. Learned APP submits that only after seeking instructions in the matter, will she be able to inform whether any appeal has been filed by the State for enhancement of the sentence.
4. Mr.Ramesh Gupta, learned Senior counsel for the appellant has been asked whether as on date, the appellant is on bail or in J/C, to which he answered that appellant is on bail as his sentence was suspended by the learned trial court.
5. Taking into consideration the gravity of the offence that is under Section 376 IPC for which the appellant has been convicted, learned senior counsel has been informed that in the given facts and circumstances, the hearing of the appeal can be expedited by the Court and the appellant may surrender on expiry of period during which his sentence has been suspended by the trial court. Learned senior counsel for the appellant submitted that the application seeking suspension of sentence may be heard and disposed of on merits.
6. Learned senior counsel for the appellant submits that appellant has a very good case to seek acquittal for the reason that the prosecutrix in this case is a married lady having grown up children and even her daughter is married and is having children. On the date of occurrence not only her married daughter was present at home but even her grown up son was present. The manner in which the occurrence is claimed to have taken place is highly improbable as if it was a case of rape, she could have raised hue and cry, so as to attract the attention of her daughter and son, who were present at home at that time. Learned senior counsel further submits that the learned ASJ has referred to the FSL report in respect of condom and since the LCR has not been requisitioned so far, he is placing on record copy of FIR, seizure memo dated 10.12.2005 and FSL report and FSL report (Biology Division). As per FSL report, human semen was detected on condom Ex.-1.But in FSL report (Biology Division), it is also mentioned that blood sample was putrified and the opinion given is No Reaction.
7. Learned senior counsel referred to the seizure memo dated 10 th December, 2005 vide which the condom was handed over by the prosecutrix and submitted that no complaint was made to the police immediately after the occurrence. It was only when the prosecutrix suspected herself to be pregnant that she claims to have informed the appellant about this fact. As per the prosecutrix, the appellant sent her some tablets and after taking the tablets she fell ill and thereafter the matter was reported to the police. Learned senior counsel for the appellant further referred to the impugned judgment dated 18th August, 2012, wherein the learned ASJ referred to the FSL report in respect of the condom, which contained semen, without taking into consideration that there was no scientific evidence to connect the semen stains in the condom with the appellant. Reference has also been made to the observations of the trial court that element of consent appears to have some cloud over the incident but despite that the appellant has been convicted for the offence punishable under Section 376 IPC. In the impugned judgment, the learned trial court has also referred that the character of the prosecutrix which is sought to be impeached on the ground that she was in the habit of lodging false FIR. All these reasons, though not specifically mentioned to be special reasons while awarding the sentence of three years, which is less than the prescribed sentence in a rape case, persuaded the learned trial court to show leniency towards the appellant.
8. Learned senior counsel for the appellant submits that when the trial court has shown leniency towards the appellant while sentencing him to only three years RI & also suspending the sentence till filing of the appeal, this Court should also suspend the sentence of the appellant during pendency of the appeal.
9. Learned senior counsel has relied on Sudhir Kumar Jain Vs. State of Delhi 2008 (1) JCC 564.Ashfaq Khan vs. State of U.P. & Ors. 2008(1) JCC 566.Bhagwan Rama Shinde Gosai and Others vs. State of Gujarat 1999 Supreme Court Cases (Cri) 553, Raj Kumar Varun vs. CBI Crl.Appeal No.190/2009, 2012(2) LRC 18.(Del) and State of Karnataka vs. Raju (2008) 1 Supreme Court Cases (Cri) 787 in support of his contention that it is a fit case where substantive sentence awarded to the appellant should be suspended during the pendency of the appeal for the reason that he has been awarded only three years of sentence, which has been suspended by the learned trial court to enable him to file appeal and now this Court should also suspend the sentence.
10. At the outset, it is necessary to mention that the appellant has been convicted for a heinous crime of committing a rape on a married woman at her own house. Section 376 IPC Part I being relevant for the purpose of disposal of this application is extracted as under:376. Punishment for rape.-(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
11. The contention of the appellant that since he has been sentenced for a period of three years, this Court should suspend the sentence pending decision on appeal, is bound to be rejected for the reason that without giving any adequate and special reason in the order on sentence, he has been awarded less than the prescribed sentence and State is yet to consider whether to go for enhancement of the sentence. Reliance by the appellant on Sudhir Kumar Jain Vs. State of Delhi (supra) and Raj Kumar Varun Vs. CBI (Crl.A.No.190/2009) decided on 17.03.2009 is of no advantage to the appellant for the reason that these two cases were under Prevention of Corruption Act. In Sudhir Kumar Jain (supra) the sentence awarded was one and half years with fine and in Raj Kumar Varun (supra) the sentence awarded was RI for two years with fine and in the facts and circumstances the substantive sentence was suspended.
12. Reliance is placed on Bhagwan Rama Shinde Gosai and ors. Vs. State of Gujarat 1999 Supreme Court Cases (Crl.) 553, wherein conviction was recorded under Section 392 and 397 IPC and sentence awarded was RI for ten years. The substantive sentence was suspended for the reasons given in paras 3 and 4, which are reproduced as under:3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.
4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on the appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of the Additional Seessions Judge, Nadiad.
13. Here in the given case, it was made clear to the appellant that hearing could be expedited so reliance placed on these judgments is of no advantage to the appellant. Reliance placed on State of Karnataka Vs. Raju (2008) 1 Supreme Court Cases (Crl.) 787 also does not help the appellant in any manner as in this case, the rape was committed on a child aged about 10 years. The minimum punishment prescribed under Section 376 (2) (f) IPC is ten years provided that for adequate and special reasons sentence for a period of less than ten years could be imposed. The Apex Court was of the view that trial court should have imposed punishment of ten years in terms of Section 376 (2) (f) IPC instead of awarding seven years, which was reduced to three and a half years by the High Court. The relevant para 5 is reproduced as under:- 5. The minimum punishment is 10 years but the proviso provides that for adequate and special reasons mentioned in the judgment a sentence of less than 10 years can be imposed. Unfortunately this aspect appears to have been lost sight of by both the trial court and the High Court and the State has also not questioned the inadequacy of sentence on that ground. The High Court has noted as follows to reduce the sentence: The learned counsel for the appellant contended that the accused is a young boy of 18 years and he is illiterate and rustic. Though he is not actually aged 18 years, he could not take the plea of his age on account of illiteracy and thus he has lost the chance of taking the benefit of reformatory legislation or seeking a remand to borstal school etc. For the illiteracy and ignorance of the accused, it should not be taken as a ground for not taking the defence in the trial court and this is a circumstance to award reduced sentence. The accused has already served in jail for 2 years 11 months. In view of the fact the accused is a young boy of 18 years belonging to Vaddara Community and illiterate, I think it just and proper to reduce the sentence from seven years RI to three and half years RI. Appeal is partly allowed.
14. The Apex Court while observing that reasons given by the High Court for reducing the sentence from 7 years to three and half years were not special and adequate reasons and also in view of the fact that State had not questioned the adequacy of sentence awarded by the trial court, restored the sentence of 7 years as awarded by the trial court.
15. The consideration to be kept in mind by the Court while awarding less than the minimum sentence prescribed and what constitute adequate and special reasons, the Apex Court quoting para 12 of the earlier decision in Dinesh Vs. State of Rajasthan, observed:
8.
12. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
16. Learned senior counsel has further relied on Ranjit Kumar Vs. State 2012 (2) LRC 18.(Del) and urged that while considering the application of suspension of sentence this Court can have a birds eye view of appreciation of evidence and weigh the finding of guilt that has been returned by the trial court. In the above-noted case, the conviction was under Sections 376 and 506 IPC. The sentence awarded was 7 years under Section 376 IPC and 3 years under Section 506 IPC apart from fine. The suspension of sentence and release on bail was considered by the Court in the facts and circumstances of the case, which have been enumerated as under:- (i) At the time of second rape of the victim, she was medically examined and although by that time she had not taken the bath, despite that, the vaginal swabs were not found containing either semen or blood, which as per medical jurisprudence should have been detected. (ii) The opinion of the doctor that the prosecutrix did not cooperate during her medical examination; (iii) One of the material witnesses who brought the prosecutrix to Delhi was not examined; (iv) The record relating to Dentist and Radiology Examination to ascertain the boney age of the prosecutrix or the school certificate were not produced; (v) The appellant has already undergone almost 6 months of sentence incarceration; and (vi) The Court was of the view that in normal course the appeal was not likely to be listed in near future.
17. The case of the appellant cannot be equated with the facts and circumstances of the case in which the Coordinate Bench of this Court released the appellant on bail after taking into consideration the facts and circumstances of the case.
18. One of the grounds taken by the appellant for seeking suspension of sentence is also that the prosecutrix is a lady of easy virtue in the habit of lodging false FIR. Merely because, it is claimed that the prosecutrix was a lady of easy virtue itself is no ground to suspend the sentence as it has to be established that there was a consent by her for that particular occasion. Since it pertains to the merits of the case, any observation on this aspect is likely to prejudice the case of either party. The contention of the appellant that even the trial court was of the view that it was a case of consent, stands negated from the fact that the Court has convicted the appellant for committing the offence of rape.
19. Taking into consideration the entire facts and circumstances of the case especially that the sentence awarded has been without disclosing the special reasons for awarding less than the minimum prescribed sentence, I do not find it to be a fit case to suspend the sentence, which is already less than the minimum prescribed sentence. The prayer for release of bail during pendency of appeal is rejected.
20. Copy of order be given dasti. PRATIBHA RANI, J November 01, 2012 aka