Kamil Kureshiyan v. The State (NCT of Delhi)

1. This is an application filed by the appellant/applicant under Section 389 Cr.P.C. for suspension of sentence. The appellant/applicant has been convicted in case FIR No. 308/2015, under Sections U/S 366 IPC & Section 4 POCSO Act, registered at PS Chhawla vide a judgment dated 30.09.2020 and order on sentence dated 15.07.2021 in SC No. 4404452/2016 passed by Sh. Vikrant Vaid, ASJ,(FTSC) (POSCO)-02, Dwarka Courts, New Delhi.

2. The appellant/applicant has been awarded Simple Imprisonment for a period of twelve years with fine of Rs.5000/- for the offence committed under Section 4 POCSO Act and five years with fine of Rs.5000/- for the offence committed under section 366 IPC and in default of payment of fine, appellant shall undergo further simple imprisonment for a period of six months. Both the sentences shall run concurrently. 2022:DHC:4261

3. The appellant/applicant was taken into custody and arrested on 28.05.2015 immediately after registration of FIR. He was granted regular bail on 28.03.2017 but he was again taken into custody on 15.07.2021 when the order on sentence was passed. It has been submitted that the appellant is a permanent resident of Uttar Pradesh and there is no chance of him fleeing from justice.

4. Notice was issued. Nominal roll has been summoned from jail.

5. I have heard learned counsel for the appellant/applicant as well as learned APP for the State.

6. In the present case the appellant has undergone 2 years 10 months and 7 days of incarceration and apart from this, he has earned remission of 3 months and 1 day and the unexpired portion of sentence is 8 years 10 months and 22 days as on 20.07.2022. The allegations against the applicant are quite serious.

7. Learned Trial Court has found the testimony of the prosecution witness as sustainable and consistent and fully corroborated by the documents on record. No evidence has been led in defence. There is no suggestion made to the witnesses regarding false implication of the present applicant, although the case of the appellant/applicant is that the victim had gone with him on her on wish and had made physical relations with him on her own. However, it has been held that the consent of the minor has no meaning and sexual intercourse with the minor tantamount to rape.

7.1. The victim is of tender age. No suggestion has been made that there was any prior enmity between the parties and for the said reason the victim and other witnesses have deposed falsely against the present appellant/applicant.

8. At this stage, keeping the above facts in view and without commenting on the merits of the matter, I am not inclined to suspend the sentence of the appellant/applicant.

9. The application is accordingly dismissed. CRL.A. 403/2021

10. List in due course.