Full Text
HIGH COURT OF DELHI
CRL.A. 768/2023
PRADEEP ..... Appellant
Through: Mr. Biswajit Kumar Patra, Adv.
Through: Mr. Hemant Mehla, APP for the State with SI Sachin Dhama, PS Shalimar
Bagh
Date of Decision: 15.09.2023
JUDGMENT
1. Exemption is allowed subject to all just exceptions. CRL.M.A. 24973/2023 (delay)
2. This is an application seeking condonation of delay of 16 days in filing the appeal.
3. For the reasons stated in the application, the delay of 16 days in filing the appeal is condoned.
4. The present criminal appeal has been filed under Section 374 (2) read with 482 CrPC challenging the judgement of conviction dated 28.10.2022 vide which the appellant has been held guilty for the offence under Section 10 of POCSO Act and Section 354/354A IPC.
5. Learned counsel for the appellant submits that the prosecution has not examined the independent witnesses. It has further been submitted that the brother and sister of the prosecutrix turned hostile. Learned counsel has also submitted that there are several contradictions in the statement recorded under Section 164 Cr. P.C. of the prosecutrix.
6. Learned counsel submits that therefore prima facie, the judgement of the conviction is liable to be set aside.
7. Issue notice.
8. Learned APP for the State accepts notice.
9. Admitted.
10. List the matter in due course. CRL.M.(BAIL) 1298/2023 (suspension of sentence)
11. This is an application seeking suspension of sentence.
12. Learned Trial Court vide order on sentence dated 31.05.2023 has awarded the substantive sentence of five years and a fine of Rs.10,000/- and in default of payment of fine, SI for a period of three months under Section 10 of POCSO Act and R.I. for five years and a fine of Rs.10,000/- and in default of payment of fine, SI for a period of three months under Section 354 IPC. Both the sentences were directed to run concurrently, and the benefit of Section 428 CrPC was also awarded to the appellant.
13. Issue notice.
14. Learned APP for the State accepts notice.
15. Learned counsel for the Appellant submits that the appellant has already undergone custody for around two years. It has been further submitted that the appellant is around 38 years of age and there is a likelihood of him being successful in the appeal filed. It has further been submitted that the conduct of the appellant in the jail, is found to be satisfactory.
16. Learned APP for the State has opposed the suspension of sentence on the ground that the accused is a close relative of the victim (brother in law) and he indulged in physical contact and explicit sexual action towards the victim.
17. The grounds on which the judgement of conviction has been challenged are predominantly that there were contradictions in the testimony of the prosecutrix at every stage of investigation and the trial. It has further been submitted that the brother and the sister of the prosecutrix turned hostile.
18. Taking into account the totality of the facts and circumstances of the case, the sentence is suspended, and the appellant is admitted to Court bail on furnishing a personal bond of Rs. 10,000/- with one surety of the like amount till the disposal of the appeal to the satisfaction of the learned Trial Court subject to the conditions:
(i) The appellant shall remain available on his mobile number which he undertakes to keep operational during the pendency of the present appeal.
(ii) The appellant shall remain in touch telephonically with the police officer in-charge on his mobile number on the first Monday of every month.
(iii) In the event of change in his residential address/ contact details, the appellant shall promptly inform the same to the concerned police officer in-charge and the court. (iv)The appellant shall remain present in the Court as and when the appeals are taken up for hearing.
19. In view of the above, the present application stands disposed of.
20. Copy of the order be sent to the concerned Jail Superintendent for information and compliance.
DINESH KUMAR SHARMA, J SEPTEMBER 15, 2023