Allahabad High Court
Sunil Kumar vs State Of U.P. on 5 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 49
Case :- CRIMINAL APPEAL No. - 4762 of 2023
Appellant :- Sunil Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Jai Singh Parihar
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
(Order on the Memo of Appeal)
Heard Mr. Jai Singh Parihar, the learned counsel for appellant and the learned A.G.A. for State.
Admit.
Summon the lower court record.
Order Date :- 5.5.2023
Vinay
Case :- CRIMINAL APPEAL No. - 4762 of 2023
Appellant :- Sunil Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Jai Singh Parihar
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
(Order on Application for Suspension of Sentence)
Heard Mr. Jai Singh Parihar, the learned counsel for appellant and the learned A.G.A. for State.
Perused the record.
Feeling aggrieved by the judgment and order dated 27.03.2023 passed by Additional Sessions Judge (POCSO Act along with rape cases), Court No. 8, Jhansi in Special Sessions Trial No. 70 of 2016 (State Vs. Sunil Kumar), under Sections 363, 366, 376 IPC and Section 4 POCSO Act, Police Station-Chirgaon, District-Jhansi. Applicant-appellant has preferred aforementioned appeal.
By means of above noted judgment and order, applicant-appellant has been convicted and sentenced under Section 363 IPC with 3 years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default in payment of fine, applicant-appellant is to undergo 1 month rigorous imprisonment. Under Section 366 IPC with 7 years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant-appellant is to undergo 2 months rigorous imprisonment. The impugned judgment and order further record that both the sentences are to run concurrently.
Record shows that applicant-appellant was on bail during the pendency of trial. He surrendered before court below on 27.03.2023 but was taken into custody to serve out the sentence awarded by means of aforementioned judgment and order. Accordingly, applicant-appellant has filed aforementioned application for suspension of sentence/bail during pendency of present appeal.
Learned counsel for applicant-appellant contends that maximum sentence awarded to the applicant-appellant is 7 years. However, the chances of the appeal being heard in near future are remote on account of heavy pendency of appeals before this Court. He further submits that applicant-appellant has been held guilty of the charges under Section376 IPC and Section 4 POCSO Act. Applicant-appellant has been convicted and sentenced under Sections 363 and 366 IPC. Attention of the Court was then invited to the recital contained in paragraph 38 of the impugned judgment and order and on basis thereof, it is urged by the learned counsel for applicant-appellant that offence complained of is not made out against applicant-appellant. No overt and covert act was done by the applicant-appellant to entice away or forcibly take away the prosecutrix. The prosecutrix is a willing and consenting party. She is major. Applicant-appellant was on bail during trial. Even otherwise, the applicant-appellant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. On the cumulative strength of above, he submits that applicant-appellant is liable to be enlarged on bail. In case, applicant-appellant is enlarged on bail, he shall not misuse the liberty of bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant-appellant is a convicted accused, therefore, he does not deserve any indulgence by this Court. Instead of enlarging the applicant-appellant on bail, the appeal itself be heard on merits, by fixing a short date. Applicant-appellant is guilty of committing an offence punishable under Section 363, 366 IPC. Offence complained of is not private in nature but a crime against society. In fact, the same falls in the category of moral turpitude. Applicant-appellant is guilty of dislodging the modesty of the prosecutrix. The prosecutrix is a young girl aged about 18 years. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant-appellant with reference to the record at this stage.
Having heard, the learned counsel for applicant-appellant, the learned A.G.A. for State and upon perusal of record, evidence, complicity of applicant-appellant and accusations made coupled with the fact that maximum sentence awarded to the applicant-appellant is 7 years, applicant-appellant having been concluded under Sections 363 and 366 IPC and Section 4 POCSO Act, applicant-appellant having been acquitted of the charges under Section 376 IPC, the recital contained in paragraph 38 of the impugned judgment and order, the prosecutrix being major and a willing and consenting party, the clean antecedents of the applicant-appellant, inasmuch as, he has no criminal history to his credit, but without making any comment on the merits of the appeal, applicant-appellant has made out a case for bail.
Let the appellant-appellant, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
It is, however, provided that the amount of fine awarded by court below shall be deposited by applicant-appellant with the court below within a period of 1 month from today failing which, the bail granted to applicant-appellant shall stand canceled and he shall be taken into custody at once to serve out the sentence.
Order Date :- 5.5.2023
Vinay
