Delhi High Court: In an application under Section 389 read with Section 482 of Code of Criminal Procedure, 1973 (CrPC) for suspension of sentence and release of the appellant on bail during the pendency of appeal, Anoop Kumar Mendiratta, J. has held that the sexual encounter between the parties was completely voluntary, and at this stage, even if the evidence is not to be reassessed for the purpose of execution of sentence, the infirmities pointed out by the appellant need consideration. Thus, granted him bail.
The appellant has been sentenced to undergo rigorous imprisonment of 10 years for the offence punishable under Section 376 (2)(n) of the Penal Code,1860 (‘IPC'), and was acquitted of the offence under Section 313 IPC.
The appellant submitted that the Trial Court erred in concluding that appellant obtained prosecutrix's consent for sexual intercourse on a false promise of marriage and there is patent illegality in the impugned judgment as the glaring lacunas in prosecution evidence have been overlooked. It is also pointed out that there is overwhelming unrebutted evidence on record that the prosecutrix herself had written blogs which were posted on social media, that she did not believe in the institution of marriage. Further, the parties had met on a social media application ‘Tinder', which is known for casual dating. Thus, as the prosecutrix herself did not believe in the idea of marriage, it is improbable by her conduct and circumstances on record that she was misled on the alleged promise of marriage. Moreover, she knew that the appellant was already married having two children, which falsifies the theory of the alleged promise to marry.
The Court reiterated that the appellate Court, at the stage of suspension of sentence and release on bail till disposal of appeal, must examine if there is any patent infirmity in the order of conviction that renders the conviction prima facie erroneous, and the evidence is not to be re-assessed or re-analysed to suspend the execution of the sentence.
The Court observed that the detailed submissions made by the appellant, pointing out that the factum of marriage of the appellant was already known to the prosecutrix, and her blogs/posts on the social media appear to reflect that she had reservations about institution of marriage and supported the idea of live-in relationship, were kept in perspective since the blogs had been made prior to the alleged reporting of the incident.
The Court held that the sexual encounter between the parties was completely voluntary, and the evidence relating to the said incident requires deeper scrutiny in the light of defence evidence; as it may be preposterous to make observations in detail at this stage. Further, at this stage, even if the evidence is not to be re-assessed for the purpose of execution of sentence, the infirmities pointed out by the appellant need consideration.
Thus, as the disposal of the appeal is likely to take some time, the sentence of the appellant was suspended till the disposal of appeal, and the Court granted him bail on furnishing a personal bond in the sum of Rs.25,000/-with two sureties, subject to certain conditions.
[Ashish Windwani v. State (NCT of Delhi), 2022 SCC OnLine Del 3314, decided on 12.10.2022]
Advocates who appeared in this case :
Senior Advocate N. Hariharan, Bharat Chugh, Siddharth Shiva Kumar, Siddarth S. Yadav, Varun Deswal, Punya Rekha Angara, Prateek Bhalla, Sharian Mukherji, Rahul, Kaushal Kaushik, Adab Ahmad, Advocates, Counsel for the Appellant;
Additional Public Prosecutor Aman Usman, Advocate, Counsel for the Respondent.