Harish Mahajan S/O Lekh Raj vs The State (Govt Of Nct)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
Date of Decision: 22 April, 2026
IN THE MATTER OF:
+ CRL.A. 814/2008
HARISH MAHAJAN S/O LEKH RAJ .....Appellant
Through: Mr. Ajit Kumar, Mr. Raushan Kumar,
Mr. Shivam Singh, Ms. Nutan
Kumari, Mr. Divyan Kumar, Advs.

versus

THE STATE (GOVT OF NCT) .....Respondent
Through: Mr. Mukesh Kumar, APP for State.
Mr. Manoj Taneja, Advocate for
complainant / Respondent No. 2.

CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT (ORAL)
VIMAL KUMAR YADAV, J.
1. The present appeal is directed against the Judgment of conviction
dated 02.06.2008 and the Order on Sentence dated 03.07.2008 passed by the
learned Trial Court, whereby the Appellant was convicted for offences
punishable under Sections 363/366/376 of Indian Penal Code 1860 (IPC).
For offence under Section 363 IPC, he was sentenced to undergo Rigorous
Imprisonment (RI) for a period of 4 years and to pay a fine of Rs. 1000/-, in
default of payment he was to undergo RI for a period of 6 months and for
the offence punishable under Section 366 IPC, he was sentenced to undergo
RI for a period of 5 years and a fine of Rs. 2000/-, in default of payment he
was to undergo RI for a period of 1 year and for the offence punishable
under Section 376 IPC, he was sentenced to undergo RI for a period of 7
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years and a fine of Rs. 2000/-, in default of payment, he was to undergo RI
for a period of 1 year.
2. The prosecution’s case, in brief, is that on 03.09.2002, the prosecutrix,
a minor aged about 15 years, left her residence for school but did not return.
The complainant, her father, lodged a report expressing suspicion that the
Appellant, who was earlier a tenant in the same premises, had enticed and
taken her away. During investigation, it emerged that the Appellant had
taken the prosecutrix in his vehicle from near her school and travelled with
her to various places including Haldwani, Almora, Kausani and Nainital.
The prosecutrix, in her statement recorded under Section 164 Cr.P.C.,
alleged that she was rendered unconscious and thereafter subjected to sexual
intercourse/acts against her will during their stay at different locations.
Appellant and the prosecutrix on the way met with an accident at Haldwani,
owing to the Appellant’s rash driving following which they proceeded to
stay at multiple hotels at multiple locations in hills. The prosecution relied
upon testimonies of hotel staff, documentary records, medical evidence and
other materials to substantiate its case. On 15.09.2002, the Appellant and the
prosecutrix were traced and apprehended at Mall Road, Nainital and brought
back to Delhi. The prosecutrix was medically examined and her statement
was recorded.
3. The scope of the appeal has now been confined to the aspect of the
sentence awarded vide order on sentence dated 03.07.2008. It has been
submitted on behalf of the Appellant that he has already undergone 5 years,
9 months and 19 days of incarceration. It is further submitted that he has lost
his Government employment and is currently surviving on the meager
income by giving tuitions and is facing financial hardship. The Appellant
has a marriageable daughter too; therefore, it is sought that the sentence may
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be reduced to the period of custody already undergone by him. He has faced
the agony and tribulations of a Criminal Trial and Appeal for 24 years. The
proviso to Section 376(2)(g) IPC has been invoked for the reduced sentence
and aforesaid grounds have been put forth as special and adequate reasons.
The Appellant has expressed his willingness to deposit the fine.
4. In support of his arguments, learned counsel for the Appellant has
placed reliance on Baldev Singh & Ors. v. State of Punjab , (2011) 13 SCC
705, the relevant portion of which is reproduced hereunder:
“ 3. Admittedly, the appellants have already undergone about
three-and-a-half years' imprisonment each. The incident is 14
years old. The appellants and the prosecutrix are married (not to
each other). The prosecutrix has also two children. An application
and affidavit has been filed before us stating that the parties want
to finish the dispute, have entered into a compromise on 1-9-2007,
and that the accused may be acquitted and now there is no
misunderstanding between them.

4. Section 376 is a non-compoundable offence. However, the fact
that the incident is an old one, is a circumstance for invoking the
proviso to Section 376(2)(g) and awarding a sentence of less than
10 years, which is ordinarily the minimum sentence under that
provision, as we think that there are adequate and special reasons
for doing so.

5. On the facts of the case, considering that the incident happened
in the year 1997 and that the parties have themselves entered into
a compromise, we uphold the conviction of the appellant but we
reduce the sentence to the period of sentence already undergone
in view of the proviso to Section 376(2)(g) which for adequate and
special reasons permits imposition of a lesser sentence. However,
we direct that each of the appellant will pay a sum of Rs 50,000 by
way of enhancement of fine to the victim envisaged under Section
376 IPC itself. The fine shall be paid within three months from
today. In the event of failure to pay the enhanced amount of fine it
will be recovered as arrears of land revenue and will be given to
the victim.”

Additionally, the learned counsel for the Appellant has also placed
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reliance on the following judgments to hammer his point that sentence even
less than the minimum prescribed, may be imposed when the circumstances
so warrant:-
a. Ravindra v. State of Madhya Pradesh , Criminal Appeal no. 1410
of 2013;

b. Amad Noormamad Bakali v. The State of Gujarat and Others ,
2026 SCC OnLine SC 292;

c. Mohd. Raju@ Raju v. State NCT of Delhi , CRL.A. 470/2020;


d. Surendra Kumar v. C.B.I. , 2025 SCC OnLine Del 4788;

e. Neeraj @ Shanky Singhal @ Kalu v. The State (Govt of NCT of
Delhi) and Anr. , CRL.A. 1110/2024;

f. Ashutosh @ Sonu v. State NCT of Delhi Through SHO PS
Govind Puri , CRIL.A. 285/2024;

g. Dharminder Kumar v. State of Haryana , CRA-S-1849-SB-2004;
and

h. Gulsher Singh v. State , CRL.A. 141/2009.

The powers of the Hon’ble Supreme Court under Article 142, which
has been involved in the aforesaid judgment are special and available
exclusively to the Apex Court. However the inherent idea is to secure the
ends of justice.

5. The facts of the present case in hand reflect that during the pendency
of the present appeal, the Appellant had approached the Court by way of an
application seeking suspension of sentence. The said application was
preferred in the backdrop of the fact that the Appellant had been convicted
for the offences punishable under Sections 363/366/376 IPC and sentenced
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to undergo rigorous imprisonment for various terms as mentioned earlier the
maximum being a period of 7 years along with fine. It was, inter alia,
submitted on behalf of the Appellant that he had already undergone a
substantial portion of the sentence, i.e., approximately 5 years and 9 months
and 19 days of incarceration (including remission). It was also urged that the
conviction of the Appellant essentially stemmed from the legal position
regarding the age of the prosecutrix, inasmuch as she was held to be below
16 years of age at the relevant time, thereby rendering her consent
immaterial in the eyes of law. Considering the entirety of these
circumstances, particularly the period of custody already undergone by the
Appellant, this Court vide order dated 18.02.2009 was pleased to suspend
the remaining substantive sentence and admitted the Appellant to bail,
subject to conditions, including the stipulation that the Appellant and his
family shall not, in any manner, directly or indirectly, contact the
prosecutrix.
6. The Nominal Roll filed on record reflects that out of 07 years of
sentence, the Appellant has already undergone 5 years, 9 months and 19
days in custody.
7. The learned Trial Court has also taken note of the fact that the
Appellant was a married person, had proximity with the family of the
prosecutrix and, therefore, stood in a position of trust which was breached.
On that premise, the mitigating circumstances sought to be projected,
namely family dependency and personal hardship, were held to be
insufficient to constitute “adequate and special reasons” for reduction of
sentence below the prescribed minimum. Incidentally, the situation remains
unaltered even now.
8. However, a significant development, which assumes relevance in the
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present context, is the submission put across by the learned counsel for the
Complainant that the Complainant has no objection to the plea of the
Appellant seeking reduction of sentence to the period already undergone.
The law requires a tighter scrutiny of every material aspect of the case
including the one at hand, without going into tunnel vision on a singular
aspect of the case without going into tunnel vision on a singular aspect. It
nevertheless, constitutes a relevant circumstance reflecting the absence of
any subsisting grievance or enmity from the side of the Complainant
towards the Appellant at this stage.
9. In Sonadhar v. State of Chattisgarh in SLP(CRL) No. 529/2021
dated 06/10/2021, it was observed as reproduced hereunder:-
“We thus issue the following directions:
a) A similar exercise be undertaken by the High Court Legal
Services Committee of different High Courts so that convicts
represented by Legal aid Advocates do not suffer due to delay
in hearing of the appeals. NALSA will circulate this order to
the concerned authority and monitor the exercise to be carried
on.

b) The Delhi High Court Legal Services Committee would take up
the cases of those convicts who have undergone more than half
the sentence in the case of fixed term sentences and examine
the feasibility of filing bail applications before the High Court
while in case of „life sentence‟ cases, such an exercise may be
undertaken where eight years of actual custody has been
undergone.

c) We are of the view that in fixed term sentence cases, an
endeavor be made, at least as a pilot project, in these two High
Courts to get in touch with the convicts and find out whether
they are willing to accept their infractions and agree to
disposal of the appeals on the basis of sentence undergone.

d) A similar exercise can be undertaken even in the respect of „life
sentence‟ cases where the sentenced persons are entitled to
remission of their remaining sentence i.e., whether they would
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still like to contest the appeals or the remission of sentence
would be acceptable to such of the convicts.
Our aforesaid additional directions are based on a premise
that at times if a convict has actually done of what he is
accused of and he is remorseful, he may be willing to accept his
acts and suffer a lesser sentence. We make it clear that the
objective is not to compel or extract acceptance from such
convicts depriving of the right of appeal.”

In the instant case, the Appellant has undergone practically the
substantial rather almost the entire sentence of 7 years by remaining in
custody for 5 years 9 months and 19 days, which carve out a case in favor of
the Appellant, if read in conjunction with the additional facts put across qua
his employment, financial status, period of the criminal trial and appeal,
family responsibilities etc.
10. Thus, considering the entire gamut of facts and circumstances,
including the nature of the offence, the period of custody already undergone,
and the subsequent developments which have been brought to this Court’s
attention such as the Appellant’s financial condition, loss of regular
Government employment and the consequential benefits thereof, the express
non-objection on behalf of the Complainant (father of the prosecutrix) to the
plea of reduction of the sentence of the Appellant, the question which arises
is whether the present case can be said to fall within the category of
exceptional cases warranting departure from the prescribed minimum
sentence for “adequate and special reasons”. The expression “adequate and
special reasons” has not been defined in rigid terms and necessarily, on
practical application, requires contextual interpretation. It requires the Court
to balance all the circumstances present in the case, on one hand, the gravity
of the offence and its impact on society weighs, on the other hand, the
individual and exclusive circumstances of the case, including post-
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conviction developments and the effect of prolonged incarceration etc.
which too stand and stare thus, cannot be ignore either.
11. In the present case, the Appellant has already undergone a substantial
period of incarceration. The continuation of the remaining sentence, in the
backdrop of the facts noted above, does not appear to advance the cause of
justice any further. Rather, it would result in prolonging the consequences of
incarceration without any corresponding societal benefit, particularly when
viewed in light of the absence of opposition from the complainant’s side.

12. At the same time, it is necessary to underscore that the conviction
recorded against the Appellant is based on due appreciation of evidence and
has attained finality. The culpability of the Appellant, therefore, stands
established and is not open to dilution.
13. Accordingly, in the peculiar facts and circumstances of the case, in
the interest of justice, it would be appropriate to modify the sentence
awarded to the Appellant to the period already undergone by him, which, in
the considered view of this Court, would sufficiently meet the ends of
justice. However, the fine of Rs. 2000/- imposed upon him under Section
376 IPC stands enhanced to Rs 25,000/-, which shall be deposited with the
Trial Court within a month from today and shall be realized as arrears of
land revenues, in case of default.
14. Appeal stands disposed of accordingly. Pending application(s), if any,
shall also stand disposed of.
15. Copy of this order be forwarded to the concerned Trial Court and
concerned Jail Superintendent.

VIMAL KUMAR YADAV, J
APRIL 23, 2026/ akc
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Signing Date:25.04.2026
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