YOGESH KUMAR vs STATE OF NCT OF DELHI AND ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 02 April, 2024
+ CRL.A. 182/2023, CRL M.(BAIL) 304/2023
YOGESH KUMAR ….. Appellant
Through: Mr.Vijay Kumar Sharma and Ms. Shree Kirtee, Advocates.

versus
STATE OF NCT OF DELHI AND ANR. ….. Respondents
Through: Mr. Ajay Vikram Singh, APP with SI Raj Kumar, PS: Lodhi Colony and W/SI Sunita.

CORAM:
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
O R D E R
ANOOP KUMAR MENDIRATTA, J.
CRL.M.(BAIL) 304/2023
1. An application under Section 389 read with Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) has been preferred on behalf of the appellant for suspension of sentence and release on bail during the pendency of appeal in FIR No.301/2015, under Sections 376/506 IPC and Section 4/12 of POCSO Act, registered at PS: Lodhi Colony, Delhi.
2. The appellant stands convicted vide judgment dated 09.09.2023 and sentenced vide order dated 17.02.2023, to undergo Rigorous Imprisonment (RI) for fifteen years and fine of Rs.50,000/- for offence punishable under Section 6 of the POCSO Act (in default of payment of fine, to undergo SI for 02 months), and Simple Imprisonment (SI) for six months and fine of Rs.10,000/- for offence punishable under Section 506 IPC (in default of payment of fine, to undergo SI for 15 days), with benefit of Section 428 Cr.P.C.
3. In brief, as per the case of the prosecution, victim alleged that 5-6 months prior to reporting the matter to police, she was taking tuition classes from the appellant at his residence. During tuition classes, appellant used to take the victim to another room and put his penis in her mouth. When victim resisted, she was beaten by the appellant. She also alleged that appellant touched her private parts inappropriately and made her watch obscene videos on his mobile phone. Further, appellant also threatened the victim not to disclose the same to anyone. FIR was accordingly registered after the victim disclosed the incident to her bua, who in turn informed the mother of the victim and the same was conveyed to the father of the victim.
4. Learned counsel for the appellant submits that learned Trial Court has wrongly based the conviction of the appellant on the testimony of PW-1 (victim), PW-2 (mother of victim), PW-3 (father of victim) and PW-4 (bua of victim) despite material contradictions and discrepancies in their testimony. It is submitted that PW-2, PW-3 & PW-4 were subsequently informed of the alleged incident by the victim and their testimony, being hearsay evidence is not of much significance. It is contended that investigation has not been conducted fairly by the Investigating Agency as it failed to examine other children who were taking tuition classes along with the victim at the residence of the appellant at the relevant time. It is also pointed out that there is a considerable delay of 6-7 months in lodging the complaint with the police and there is no cogent explanation for the same. It is further submitted that there are only two rooms in the house of the appellant, in which seven family members were residing at the relevant time and it is not feasible that alleged offence could have been committed in their presence as it is admitted by the victim that other family members used to remain present in the premises at the time of tuition. Further, proceedings under Section 107/150 Cr.P.C. are also stated to be pending between the family of the appellant and victim. It is further urged that victim has been used as a tool by her bua (aunt) to falsely implicate the appellant as bua of the victim wanted to marry the appellant but on his refusal, warned him of dire consequences. Also, the victim did not undergo gynecological examination for the reasons best known. It is further contended that appellant has clean past antecedents and remained on bail during the course of trial.
5. On the other hand, application is opposed by learned APP for the State and it is submitted that testimony of witnesses is credible and cannot be overlooked merely on the grounds of delay in registration of FIR or non-examination of other children who were taking tuition with the victim.
6. I have given considered thought to the contentions raised.
The prosecution case is by and large based only on the testimony of the victim. Admittedly, FIR has been registered after about 6-7 months of the alleged incident at the instance of husband of bua (aunt) of the victim after the incident was disclosed by the victim to her bua. No plausible reason has been accorded by prosecution for not joining or recording the statements of other children who were present at the time of tuition. It has come on record during cross-examination that alleged residence of the appellant consisted of interconnected rooms and the appellant was residing with his parents, two brothers and bhabhi at the relevant time. It may be noticed that even mother of the victim during her cross-examination admitted that house of the appellant was adjacent to the house of victim and the elder brother of the accused is married and is living in the same house which comprised of two rooms and balconies. It was also admitted that mother and wife of the accused were not employed and were residing in the same accommodation which is a government flat. It is also admitted by the victim that bhabhi of the accused was having a small child who used to play in the same room and three students were taking tuition from the appellant. Further tuition timing of other children was the same as that of the victim. Since the victim had left the tuition with appellant 5-6 months prior to lodging of the FIR, reasons for non-disclosure of incident for such a long period requires consideration in appeal.
7. Without expressing any opinion on the merits of the appeal, considering the facts and circumstances and discrepancies on record, sentence of the appellant is suspended during pendency of appeal and is admitted to bail on furnishing a personal bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the learned Trial Court and subject to following conditions:
(i) Appellant shall provide his mobile number to the Investigating Officer (IO)/SHO concerned at the time of release and shall appear as and when directed by this Court.
(ii) In case of change of address, appellant shall intimate/communicate his fresh address to the IO/SHO concerned.
Application is accordingly disposed of.

A copy of this order be forwarded to the learned Trial Court and Superintendent Jail for information and compliance.
CRL.A. 182/2023
Appeal be listed on 08.07.2024.

(ANOOP KUMAR MENDIRATTA)
JUDGE
APRIL 02, 2024/sd/v

CRL.A.182/2023 Page 5 of 5