HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE No.: Crl.A.No.69 of 2019
PROCEEDING SHEET
Sl. DATE
ORDER
No
09. 12.10.2022 MGR, J & TMR, J IA.No.1 of 2022 This application has been filed on behalf of the petitioner-appellant-accused under Section 389(1) Cr.P.C to suspend the sentence passed against the petitioner in Sessions Case No.199 of 2016 on the file of the Metropolitan Sessions Judge-cum-I Additional Sessions Judge-cum-Special Judge to try the offences under Protection of Children from Sexual Offences, Visakahpatnam, and release the petitioner on bail, pending criminal appeal.
Heard learned counsel for the petitioner- appellant-accused and learned Additional Public Prosecutor appearing for the respondent-State.
Learned counsel for the petitioner submits that by the judgment impugned, the trial Court, found the petitioner-accused guilty for the offences punishable under Sections 363, 376 IPC and Sections 4 & 6 of the Prevention of Children from Sexual Offences Act, 2012 [POCSO Act] and accordingly sentenced to rigorous imprisonment for a period of seven years for the offence 2 under Section 363 IPC, sentenced to life imprisonment for the offences punishable under Section 376 IPC and Sections 4 & 6 of the POCSO Act. The petitioner is innocent of the offences for which he was charged, tried and found guilty. The petitioner and the victim were in love and for the said reason, the victim left her parents home and went with the petitioner and married him. The petitioner has been falsely implicated in the case as he married the victim against the wish of her parents. The victim stayed with the petitioner for about ten days but the victim never raised any protest or alarm. Only after marrying the victim, the petitioner entered into physical relation with the victim. Therefore, it cannot be said that the accused kidnapped and committed rape on the victim. Though the consent of a girl below eighteen years is not valid, usually a person aged sixteen years or older attains the age of discretion to understand the consequences of their actions. In the instant case to prove the age of the victim, the prosecution relied upon the study cum conduct certificate. In the absence of positive evidence lead by the prosecution with regard to the age of the victim/prosecutrix, the possibility of her age being below 18 years would be doubtful. To prove the age of the victim, procedure as per Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007, has to be followed. The age of the victim may not be considered as the only factor and the age of the 3 petitioner, as on the date of commission of alleged offence, may also be taken as a mitigating circumstance and a lenient view may be taken. The victim is now married and leading a happy marital life. The petitioner is languishing in jail since four years for no fault of his. Stating so, she prayed to suspend the sentence and enlarge the petitioner on bail. In support of her contentions, she placed reliance on the decision of the Hon'ble Apex Court in Anversinh alias Kiransinh Fatesinh Zala v. State of Gujarat [2021(2) ALD (Crl) 587 (SC)].
Learned Additional Public Prosecutor opposed the application stating that the petitioner committed offence against minor girl and apart from conviction for the offence punishable under Section 376 IPC, he was also convicted for life for the offences punishable under Sections 4 & 6 of the POCSO Act.
We have perused the record and the decision cited. The submissions made by learned counsel for the petitioner with regard to the age of the victim have to be gone into at the time of final hearing of the appeal. Insofar as the submissions of learned counsel for the petitioner, to take a lenient view taking into consideration the age of the petitioner-accused, basing on the observations made in the decision cited, the said observations were made by the Hon'ble Apex Court while deciding the main appeal and not at the time of 4 considering an application for bail. In view of the conduct of the petitioner, which has been held established by conducting full-fledged trial, and the gravity of offences for which the petitioner was convicted, we are not inclined to suspend the sentence and enlarge the petitioner on bail.
Accordingly, the application is dismissed.
_______ MGR, J _______ TMR, J Crl.A.No.69 of 2019 Post the appeal for final hearing on 16.11.2022.
___________ MGR, J ___________ TMR, J Vjl