Anil Pandey vs State Of U.P.
2023 Latest Caselaw 14663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:112730
 
A.F.R.
 
Court No. - 43
 
Case :- CRIMINAL APPEAL No. - 994 of 2023
 
Appellant :- Anil Pandey
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amit Kumar Pandey,Sunil Kumar Singh
 
Counsel for Respondent :- G.A.,Dharmendra Kumar Chaubey,Pravin Kumar Tiwari
 
Hon'ble Vinod Diwakar,J.

Crl. Misc. Suspension of Sentence Application No.1 of 2023

1. I have heard learned counsel for the appellant, learned counsel for the complainant, and learned A.G.A. for the State on suspension of sentence.

2. The accused-appellant Anil Pandey has been convicted in Sessions Trial No.13 of 2018 (State vs. Anil Pandey), arising out of Case Crime No. 88 of 2017, under Sections 376, 394, 323 and 506 I.P.C., Police Station Kotwali, District Ballia, and has been sentenced to suffer R.I. for ten years in respect of offences, mentioned herein above, apart from fine.

3. As per the prosecution case, on 22.11.2014, the complainant filed a written complaint to the police stating that the accused-appellant has been exploiting the complainant for the last sixteen months. The accused has taken anklets and other ornaments after beating the complainant. The accused had an evil eye on the complainant's daughter, and when the complainant and her daughter resisted the move of the accused, he assaulted and threatened to defame the complainant's daughter. It is also an allegation in the FIR that if the complainant's daughter does not gratify the sexual impulses of the accused-appellant, he will defame her daughter on social media and made viral her photos. When the complainant's daughter did not succumb to the urge of the accused-appellant, he circulated the inappropriate pictures by morphing her daughter's image to her relatives and co-villagers.

4. On these sets of allegations, on 12.01.2017, an FIR bearing Case Crime No. 88 of 2017, under Section 376, 394, 354, 323 and 506 IPC was registered against the accused at P.S. Revati, District Ballia, U.P. The accused was tried for the aforesaid offences and has been convicted and sentenced accordingly, apart from fine.

5. Learned counsel for the accused-appellant submits that the victim and appellant resided together for more than four years as husband and wife, and the mobile number of the appellant was also mentioned in the victim's Aadhar Card and Ration Card. He further submits that when the appellant refused to fulfil the demand for money of the complainant, she falsely implicated the accused. The submission is that the appellant was on regular bail during the trial. Therefore, the accused-appellant be enlarged on bail.

6. The counsel further submits that the accused-appellants name has been mentioned as guardian in the admission form of complainant's daughter, which shows that the accused has consensual relationship with the complainant since long. The case is registered with the oblique motive to falsely implicate the accused on the basis of concocted story which is apparent from the testimony of PW-1 and PW-2. There are material contradictions and improvements in the testimony of PW-2, who is daughter of the complainant.

7. Be that as it may, the detailed examination of the merits of the case may not be required by the courts while considering the application for suspension of sentence, but at the same time, the exercise of discretion has to be based on well-settled principles and in a judicious manner, and not as a matter of course as held by Apex Court in Chaman Lal v. State of U.P. and Anr1.

8. The principles which must guide the suspension of sentence in a rape case have been reiterated in several decisions of Apex Court. I may refer to Om Prakash Sahni v. Jai Shankar Chaudhary and Another 2, wherein while referring to series of judgments passed by the Apex Court on suspension of sentence, His Lordship has referred to Rajesh Ranjan Yadav alias Pappu Yadav v. CBI3, Ash Mohammad v. Shiv Raj Singh alias Lalla Babu4, Bhagwan Rama Shinde Gosai v. State of Gujarat5, and has held as follows:-

"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach.

9. In State of Haryana v. Hasmat6 the Apex Court stated as under:-

"6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

(emphasis supplied)"

10. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrants suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

11. At this stage, I refer to the decision of the two-Judge Bench of Apex Court in Omprakash Sahni's case (supra), where His Lordship J.B. Pardiwala, J., speaking for the Court, observed as follows:

"22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders.

23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.

24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the Court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC."

12. This Court is duty-bound to objectively assess the matter and record the reasons for its conclusion for deciding the application under Section 389(1) Cr.P.C .

13. Returning back to the case in hand, the complainant was examined as PW-1, and her daughter was examined as PW-2. The complainant stated that the accused had exploited her for sixteen months. She was mentally and physically tortured and faced regular beating and humiliating incidents. The accused used to say that he had made a video of her and would circulate it on the internet if she would not satisfy his lust. On many occasions, the accused made the complainant naked in front of her daughter and son. The accused occasionally does dirty talks with the complainant's daughter and, on a few occasions, attempted to rape her. The accused circulated morphed pictures of the complainant's daughter among her relatives and co-villagers. Three hundred such pamphlets were circulated. The complainant had lodged a complaint on 22.11.2014 at P.S. Civil Lines against such an aggravated move of the accused, but the same was withdrawn under the pressure of the accused's relative and fearing her safety and security. The same is exhibited as Ex. 4 Kha/5. The police had conducted the complainant's medical, and her statement under Section 161 Cr.P.C. was also recorded regarding the complaint dated 22.11.2014; even after that, the complainant had to withdraw the complainant under pressure from the accused-appellant.

14. The complainant's daughter was also examined as PW-2. She has supported the prosecution's case. The witness stated that the accused used to beat her mother mercilessly, and also had an evil eye on her. When her mother resisted such a move by the accused, she was abused and beaten. Her morphed pictures were also circulated amongst her relatives and co-villagers.

15. The Court is also conscious of the fact that the women hesitate to register a rape case against her paramour in Indian society because of fear of social stigma. The victim may fear being judged, ostracized, or blamed by their family, friends or community members. This fear of social stigma can discourage women for reporting sexual crime, particularly if the perpetrator is someone known intimately.

16. There is also fear of retaliation in the mind of the victim. The victims may fear reprisals or threats from the perpetrator or their associates if they report that kind. This fear can be heightened when the perpetrator is someone they have closed relationship with, such as a partner or paramour. The women who report rape or sexual assault may fear retaliation from the perpetrator, the family, or their community. This can include threats, violence or social isolation.

17. Many sexual offence cases go under reporting due to fear of social stigma, victim-blaming, and the perception that reporting may bring same bad name upon the victim and their family. This leads to a significant number of cases not being registered, which naturally affects the over all conviction rate.

18. After hearing the counsel for the parties and on perusal of the record, I am of the view that :

18.1 Even though the minute examination of evidence and detailed documentation of the case's merit is not warranted at this stage. Still, this court is duty bound to objectively assess the matter and record the reasons on its conclusion for deciding the application for suspension of sentence.

18.2 On perusal of the testimony of PW-1 and PW-2, prima-facie, it transpires that the testimony of PW-1 and PW-2 are trustworthy and reliable as both are victims of sexual offence and advances by same man. And no explanation has been put forth for the false implication of the accused-appellant except that the complainant and victim was in relationship, even if it is presumed, at this stage, the victim was in a relationship with the accused, it does not give a licence to the accused to exploit the women for all time to come and also to have evil eyes on her young daughter.

18.3 The complainant had to withdraw the complaint dated 02.11.2024 lodged at PS Civil Lines, Ballia, under pressure from the accused-appellants and his family members. This shows that the accused wields substantial and compelling influence in the administration, and may cause harm to the complainant and her daughter's safety and security if released on bail at this stage.

18.4 On perusal of the custody certificate of the accused-appellant, it reflects that the accused has undergone custody of only 153 days till 07.05.2023, even though he has been awarded a maximum sentence of ten years along with lesser sentences, apart from fine.

18.5 The accused-appellant is not a man of the clean antecedent. A Case Crime No. 0057 of 2020 P.S. Kotwali, District Ballia, under Section 419 and 422 IPC has been registered against the accused-appellant.

19. For the reasons detailed above, the application for suspension of sentence is dismissed at this stage.

20. While concluding, however, I hasten to add that my observations are confined to the question as to whether a case of suspension of sentence are made out or not and shall not affect the merit of the case when the appeal comes up for hearing before this Court.

21. If the appeal is not listed for final hearing after a year, the prayer for suspension of sentence may be revived, afresh and shall be decided on merits of the case.

22. List the appeal for hearing at the earliest.

Order Date :- 10.5.2023

Rakesh/Shafique