Allahabad High Court
Uday Pratap @ Lali vs State Of U.P. on 9 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:100893
Court No. - 49
Case :- CRIMINAL APPEAL No. - 5889 of 2021
Appellant :- Uday Pratap @ Lali
Respondent :- State of U.P.
Counsel for Appellant :- Prashant Kanha,Nikhil Kumar,Sanjay Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Order On The Application For Suspension Of Sentence
Heard Mr. Sanjay Kumar Singh, the learned counsel for applicant appellant and the learned A.G.A. for State.
Perused the record.
Feeling aggrieved by the judgment and order dated 24.11.2021 passed by Additional Sessions Judge/Special Judge (POCSO) Act, Rape Cases, Jaunpur in Sessions Trial No. 313 of1998 (State Vs. Uday Pratap @ Lali and another), arising out of Case Crime No. 63 of 1998, under Sections 363, 366, 376 I.P.C., Police Station Sureri, District Jaunpur, applicant appellant has preferred aforementioned Criminal Appeal.
By means of above noted judgment and order, applicant appellant had been convicted under Section 363 I.P.C. with three years rigorous imprisonment along with fine of Rs. 2,000/- and in case of default in the payment of fine applicant appellant is to undergo one month addition rigorous imprisonment, under Section 366 I.P.C. with five years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default in payment of fine applicant appellant is to undergo two months additional rigorous imprisonment, under Section 376 I.P.C. with seven years rigorous imprisonment and in case of default in payment of fine applicant appellant is to undergo three months additional rigorous imprisonment. The impugned judgment and order further records that all 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 24.11.2021 and was taken into custody to serve out the sentence so awarded by the court below. Resultantly, applicant appellant has filed aforementioned application seeking suspension of sentence/bail application during the pendency of present appeal.
Learned counsel for applicant appellant submits that maximum sentence awarded to the applicant appellant is seven years. Applicant appellant has been convicted under Section 363, 366 and 376 I.P.C. However, the applicant appellant has not been convicted under the provisions of the POCSO Act. Applicant appellant is a young boy and was aged about 19 years on the date of occurrence. Applicant appellant is in jail since 24.11.2021. As such he has undergone more than one year and five months of incarceration.
Attention of the Court was then invited to paragraph 16 of the impugned judgment, wherein court below had dealt with the examination-in-chief of the prosecutrix. On the basis of above, the learned counsel for applicant appellant contends that the prosecutrix is a consenting party and she herself accompanied the applicant.In view of above, the ingredients of Sections 363/366 I.P.C. are not satisfied against applicant up to this stage.
The prosecutrix being a consenting party, therefore no offence under Section 376 I.P.C. can be said to be made out against applicant appellant. Even otherwise applicant appellant is man of clean antecedents in as much as he has no criminal history to his credit except the present one. There are no chances of the appeal being heard in near future on account of heavy pendency of appeal before this Court. In case applicant appellant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. On the above premise he contends that applicant appellant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant appellant is a convicted accused and therefore he does not deserve any indulgence by this Court. He submits that interest of justice shall better be served, if the appeal itself is decided finally by fixing a short date instead of deciding the bail order. Applicant is guilty of dislodging the modesty of prosecutrix who is a young girl aged about 16 to 17 years as per the medical evidence. Offence complained of is not private in nature but a crime against society. In fact, the same falls in the category of moral turpitude. Considering the nature of offence committed by the applicant, no sympathy be shown by this Court in favour of applicant appellant. However, the learned A.G.A could not dislodge the factual and 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, upon perusal of record, evidence on record, allegations made, complicity of accused applicant appellant and coupled with the fact that the prosecutrix in her cross-examination as noted by court below in paragraph 60 of the impugned judgment that she is a consenting party, no objection was raised by the prosecutrix while travelling with the accused applicant appellant in a public bus, the offence under Sections 363 and 366 I.P.C. is prima facie not made out against applicant appellant and also the fact that the prosecutrix is prima facie a consenting party and she is said to be aged about 16 to 17 years as per medical evidence, which can go either way, therefore it can prima facie be said prosecutrix is major, the clean antecedents of applicant appellant is as much as he has no criminal history to his credit except the present one, the applicant appellant was on bail during trial but without making any comment on the merits of the appeal applicant appellant has made out a case for bail.
Let the applicant appellant Uday Pratap @ Lali, convicted and sentence in Sessions Trial No. 313 of1998 (State Vs. Uday Pratap @ Lali and another), arising out of Case Crime No. 63 of 1998, under Sections 363, 366, 376 I.P.C., Police Station Sureri, District Jaunpur be released on bail, on his furnishing a personal bond with two surities each in the like amount to the satisfaction of court concerned.
However, it is provided that the amount of fine awarded by court below shall be deposited by applicant appellant within a period of one month from today before court below. In case of default, the bail granted to the applicant appellant shall stand cancelled and he shall be taken into custody at once to serve out the sentence.
Order Date :- 9.5.2023
Aiman
