Allahabad High Court
Nazim vs State Of U.P. on 22 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:113037
Court No. - 49
Case :- CRIMINAL APPEAL No. - 93 of 2022
Appellant :- Nazim
Respondent :- State of U.P.
Counsel for Appellant :- Vikrant Gupta,Brijesh Kumar Pandey,Nasim Uddin,Shujauddin
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Order on the application for suspension of sentence
1. Heard Mr. Brijesh Kumar Pandey, the learned counsel for applicant appellant and the learned A.G.A. for State.
2. Perused the record.
3. Feeling aggrieved by the judgment and order dated 6.12.2021 passed by Additional Sessions Judge, POCSO Court (Exclusive), Rampur in Sessions Trial No. 226 of 2013 (State of U.P. Vs. Nazim), arising out of Case Crime No. 02 of 2013, under Sections 363, 366, 376(1) I.P.C., Police Station Shahzad Nagar, District Rampur, applicant appellant has preferred aforementioned criminal appeal.
4. By means of above judgment and order, applicant appellant has been convicted under Section 363 I.P.C. and consequently sentenced to five years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default in the payment of fine applicant appellant is to undergo three months additional simple imprisonment, under Section 366 I.P.C. with five years rigorous imprisonment along with along with fine of Rs. 5,000/- and in case of default in the payment of fine applicant appellant is to undergo three months addition simple imprisonment, under Section 376(1) I.P.C. with seven years rigorous imprisonment along with along with fine of Rs. 10,000/- and in case of default in the payment of fine applicant appellant is to undergo six months addition simple imprisonment. The impugned judgment and order further record that all the sentences shall run concurrently.
5. Record shows that applicant appellant was on bail during the pendency of trial. He however surrendered before court below on 4.12.2021 and was taken into custody to serve out the sentence so awarded by means of the above judgment and order. Accordingly, applicant appellant has filed aforementioned application seeking suspension of sentence/bail during the pendency of present appeal.
6. Learned counsel for applicant appellant contends that applicant appellant has been convicted and sentenced under Sections 363, 366, 376(1) I.P.C. However the applicant appellant is innocent. The maximum sentence awarded to the applicant appellant is seven years. Applicant appellant is in jail since 4.12.2021. As such applicant appellant has undergone one year and five months of incarceration. There is no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court. Attention of the Court was then invited to the statement of the prosecutrix which has been dealt with by court below at page-11 of the paper book. On the above premise, it is sought to be contended that since prosecutrix is a consenting party, therefore no offence as alleged can be said to have been committed by applicant appellant. Even otherwise applicant appellant is a man of clean antecedents. He has no criminal history to his credit except the present one. In case applicant appellant is enlarged on bail he shall not misuse the liberty of bail. On the above premise, it is thus vehemently urged by the learned counsel for applicant appellant that applicant appellant be enlarged on bail.
7. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant appellant is a convicted accused under Sections 363, 366, 376(1) I.P.C. and therefore he does not deserve any indulgence of this Court. Offence complained of is not private in nature but a crime against society. In fact the same falls in the category of "moral turpitude". According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard finally on merits by fixing a short date instead of deciding the bail matter. Learned A.G.A further submits that the prosecutrix is a young girl aged about fifteen years whose modesty was dislodged by applicant appellant by committing sexual assault upon her. Since the prosecutrix is below sixteen years of age, therefore her consent, if any, is totally immaterial in view of the law laid down by the Apex Court in the case of X (minor) Vs. State of Jharkhand and another (2022) Live Law (SC) 194. Learned A.G.A. has invited the attention of the Court to the statement of the prosecutrix which is on record at page-11 of the paper book. On the basis of above he submits that the prosecutrix has supported the prosecution story. Her statement is also worthy as it does not suffer from any contradictions, exaggeration or embellishment. He further contends that in view of the heinous nature of the crime committed by the applicant appellant, he does not deserve any sympathy of this Court. The period of incarceration undergone by applicant appellant itself is not so substantial so as to enlarge applicant on bail. It is thus urged that bail application is liable to be rejected by this Court.
8. Having heard the learned counsel for applicant appellant, the learned A.G.A. for State, upon perusal of record, evidence on record, accusations made, complicity of accused applicant appellant and coupled with the fact that applicant appellant has been convicted and sentenced under Sections 363, 366, 376(1) I.P.C., offence complained of is not private in nature but a crime against society, the prosecutrix being a young girl aged about fifteen years, the modesty of the prosecutrix has been dislodged by forcibly committing sexual assault upon her, the consent, if any, of the prosecutrix is wholly irrelevant in view of the judgment of Surpreme Court as noted above, but without making any comment on the merits of the appeal, this Court does not find any good ground to enlarge applicant appellant on bail.
9. The application therefore fails and is liable to be rejected.
10. It is, accordingly, rejected.
Order Date :- 22.5.2023
Aiman
