NASEEM Vs. STATE GOVT OF NCT OF DELHI

JUDGEMENT

(1.) BY way of this appeal under Section 389 Cr. P. C. the appellant seeks suspension of sentence during the pendency of the present appeal.

(2.) COUNSEL appearing for the appellant submits that appellant has been falsely implicated in the present case and the learned trial court has also passed a wrong order convicting the appellant and sentencing him to undergo RI for a period of the ten years with fine of Rs. 500 and in default of payment of fine SI for 15 days for the offence under Section 376 (2) (g) IPC and to undergo ri for two years for the offence under Section 506 IPC, In support of his argument counsel for the appellant has placed reliance on the testimony of prosecutrix PW1 Nazia parveen. In her deposition, she has stated that she can identify the persons who committed rape on her and after saying so the said witness had taken a look around the court and pointed towards accused Jahid to be the person who had committed rape with her but she failed to identify the appellant naseem who was present in the court by saying that he is not the same person who had committed rape on her. She also stated that the other person who committed rape on her was not present in court on that day. Learned counsel for the appellant has also placed reliance on the statement of prosecutrix's mother Ms. Shazida who turned hostile and stated that Naseem was not residing as a tenant in the premises where the rape was committed. She was further cross- examined on this point by the defence counsel when she told that appellant Naseem used to visit accused Zahid but he never resided in that further stated that she had never seen Naseem as there was a curtain in her room. In support of this argument the counsel for the appellant submits that the appellant has been residing in 1044, Chauhan Bangar, Shahdara, Delhi which is far away from the place of incident. Counsel further submits that the present appellant was never a tenant in the premises where the alleged offence had taken place. Counsel for the appellant has also invited attention of this court to the statement of the father of the prosecutrix Mohd. Parvez who entered the witness box as PW3 and clearly stated that neither he saw accused Naseem on the first floor of his house nor he saw him residing there, where the incident occurred. He denied the suggestion that he had entered into a compromise with accused Nasem. Counsel for the appellant further disputed the letter on which strong reliance was placed by the prosecution in the trial court and even at this stage. Counsel for the appellant states that no such letter was ever written by the appellant and even otherwise the prosecution failed to prove the said letter in accordance with law. Counsel also states that no witness from the locality was examined so as to prove that the appellant was a tenant in the premises where the alleged offence of rape was committed upon the prosecutrix.

(3.) OPPOSING the bail application Mr. Pawan Sharma, APP for the State submits that there was a clear admission on the part of the appellant as he had written a letter to accused Zahid. Mr. Sharma further submits that the appellant had refused to give his handwriting and therefore his handwriting could not be sent for expert opinion. He further submits that in the initial complaint it was clearly stated that the appellant was a tenant alongwith accused Zahid and both of them had committed rape on the prosecutrix. Counsel also states that looking into the gravity of the offence the appellant does not deserve grant of anticipatory bail.