Pankaj Kumar Bhola v. Govt. of NCT of Delhi

1. The present application has been preferred by the appellant for suspension of sentence awarded vide order dated 3rd February, 2021 pursuant to order of conviction dated 11th January, 2021 of the Ld. Trial Court. The conviction arose out of FIR No.471/2016 under sections 8 and 12 PCOSO Act registered at PS Punjabi Bagh and the sentenced awarded was for simple imprisonment (SI) for 4 years with fine of Rs.10,000/- for the offence punishable under section 8 POCSO Act (SI for a period of one month in default of payment of fine) and SI for 1 year with fine of Rs.5,000/- for the offence punishable under section 12 POCSO Act (SI for a period of 15 days in default of CRL MB 472/2022 Page 2/6 payment of fine). The appellant has already undergone incarceration for 2 years 2 months. As per the nominal roll, no interim bail has been sought during this period of incarceration and his jail conduct is satisfactory.

2. Learned counsel for the appellant has contended that the appellant was a reputed computer coach in a computer centre where the prosecutrix was a student and had been enrolled with him for learning various computer programs and software including web designing, which is a matter of record.

3. As per the appellant, he was supposed to receive a total fee of Rs.18,500/- for the said courses which was to be paid full in advance whereas only Rs.6,000/- was paid by the parents of the prosecutrix. The fact that the entire fee was to be paid in advance, as per the appellant, is evident from the cross examination of PW-2 (mother of the prosecutrix) and PW-3 father of the prosecutrix. It is the case of the appellant that when he demanded the balance fee, parents of the prosecutrix falsely implicated him in the present proceedings.

4. The appellant has further contended that the prosecution has failed to prove the age of the prosecutrix and an application had been filed by the prosecution to summon the principal of the school of the prosecutrix but there was no adjudication on that application. It is the case of the appellant that the prosecution was not confident of the age of the prosecutrix however, this aspect was brushed aside by the Ld. Trial Court. Moreover, the place where the coaching was being conducted by the appellant was situated in a densely populated area and in the appellant’s own home which had the presence of appellant’s mother, father, brother and others.

5. Learned counsel for the appellant has further contended in the memo of appeal that the CDRs and location charts of mobiles of either the prosecutrix, her parents or that of appellant have not been placed on record by the IO along with charge sheet. Further, he relies on the fact that the family of the appellant had also provided their testimonies in defence that they were available in that area and they had not noted any surreptitious activity as has been alleged by the prosecutrix.

6. Learned counsel for the appellant has further adverted to the period undergone which is more than half of the sentence awarded and the fact that the appellant has no criminal antecedents nor any involvement in any other case in support of his plea for suspension of sentence. Also the fact that the appellant is a young person having his entire future and career ahead and belongs to a respectable family, and has a fixed place of abode i.e. H No.198, Pocket-3, Janta Flats, Paschim Puri, New Delhi – 110063 and therefore, not a flight risk. Learned counsel for the appellant has relied upon decisions of the Hon’ble Supreme Court in Sonadhar v. State of Chhatisgar, SLP (Crl.) 529/2021 order dated 6th October, 2021 and Saudan Singh v. State of Uttar Pradesh, SLP (Crl.) 46633/2021 order dated 5th October, 2021 as well as various other decisions of coordinate Benches of this Court where the suspension of sentence has been granted to the convicts under sections 8 and 10 of PCOSO Act.

7. Learned APP for the State has refuted the contentions of learned counsel for the appellant stating that version of the prosecutrix was reflected in her statement recorded under section 164 Cr.P.C. that there was an attempt by the appellant to sexually harass her.

8. Learned counsel for the respondent no.2 has submitted that the relationship of the victim with the appellant was that of a tutor and pupil and involved trust and faith and such a fiduciary relationship was violated. Further, the prosecutrix had stood firm in her testimony during her cross examination and that the defence witnesses, the mother and brother of the appellant had testified contrary to each other.

9. As per the status report filed by the State, the date of birth of the prosecutrix is reflected as 22nd December, 1999 and therefore, on the date of alleged incident i.e. 31st July, 2016, she would have been about 16 years of age. She was studying in class 12 in Sarvodaya Co-Ed Vidyalaya, B-4, Paschim Vihar, New Delhi.

10. Considering the facts and circumstances of the case, as adverted to by the counsel for the appellant where they may have substantial issues to press in their appeal, but since the appeal is pending before this Court and will take time to be heard and adjudicated upon; as also the fact that the appellant has already served more than half of his sentence that too without having taken any interim bail; as also he has no previous conviction and his jail conduct is satisfactory, in view of the directions of the Hon’ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021, as well as Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259 (where the Hon’ble Supreme Court has observed that in cases other than life sentence cases, the broad parameter of 50 per cent of actual sentence undergone can be the basis of grant of bail), this Court deems it fit to suspend the sentence of the appellant.

11. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹25,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the following conditions: i. Appellant will not leave the country without prior permission of the Court. ii. Appellant shall provide permanent address to the Ld. Trial Court. The appellant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Appellant shall appear before the Court as and when the matter is taken up for hearing. iv. Appellant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location be kept on at all times. v. Appellant shall not indulge in any criminal activity and shall not communicate with or come in contact with the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.

12. Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on merits of the matter.

13. Copy of the order be sent to the Jail Superintendent for information and necessary compliance.

14. Application is therefore disposed of in the above terms. Pending applications (if any) are disposed of as infructuous.

15. Judgment be uploaded on the website of this Court.