Allahabad High Court
Mahaveer vs State Of U.P. on 22 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:112601
Court No. - 49
Case :- CRIMINAL APPEAL No. - 5108 of 2022
Appellant :- Mahaveer
Respondent :- State of U.P.
Counsel for Appellant :- A Kumar Srivastava,Manish Kumar,Rohit Nandan Pandey
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
(Order on the application for bail)
Heard Mr. Rohit Nandan Pandey, the learned counsel for applicant-appellant and the learned A.G.A. for State
Perused the record.
Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.
Feeling aggrieved by the judgment and order dated 04.06.2022 passed by Additional Sessions Judge(F.T.C.) Court No.1, Aligarh in S.T. No. 144 of 2018 arising out of Case Crime No. 125 of 2017 under Sections 376, 120B, 228A, 506 I.P.C. Police Station, Gonda, District-Aligarh. Applicant-appellant has preferred aforementioned criminal appeal.
By means of above-noted judgement and order, applicant-appellant has been convicted and sentenced under Section 376 I.P.C. and consequently sentenced to 8 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default, applicant-appellant is to undergo 6 months additional imprisonment. Half of fine imposed against applicant-appellant is payable to the prosecutrix.
Record shows that applicant-appellant was enlarged on bail during the pendency of trial. However, he surrendered before the Court below on 04.06.2022 but was taken into custody to serve out the sentence awarded by means of the impugned judgement and order referred to above.
Accordingly, applicant-appellant has filed aforementioned application for bail seeking his enlargement on bail during the pendency of appeal.
Learned counsel for applicant-appellant contends that though applicant is a convicted accused but he is innocent. Applicant-applicant has been convicted and sentenced under Section 376 I.P.C. but the maximum sentence awarded to the applicant-appellant is 8 years. Applicant-appellant is in jail since 03.06.2022. As such, he has undergone a little more than 11 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 as dealt with by Court below in paragraph 9 of the impugned judgement and also the statement of the doctor who physically examined the prosecutrix and has been dealt with in paragraph 11 of the impugned judgment. With reference to above, the learned counsel for applicant-appellant contends that though the prosecutrix alleges that her modesty was forcibly dislodged by the applicant but the doctor who medically and physically examined the prosecutrix did not find any injury on her body. It is then contended by the learned counsel for applicant-appellant that the F.I.R. was lodged subsequent to an application under Section 156(3) Cr.P.C. The medical evidence does not support the prosecution story as unfolded in the statement of the prosecutrix. The prosecutrix is major. Attention was then invited to the recital contained at page 17 of the paper book and on basis thereof, it is thus urged that in view of pre-existing enmity between the parties, the present criminal proceedings are not only an illegal but also malicious. The prosecution story as unfolded in the F.I.R. is highly improbable. On the basis of above, it is the credibility of the prosecutrix which has been sought to be dislodged. On the above premise, it is, thus, urged by learned counsel for applicant-appellant that applicant 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. Applicant-appellant has been convicted and sentenced for an offence punishable under Section 376 I.P.C. As such, offence complained of is not private in nature but a crime against the society. In fact the same falls in the category of moral turpitude. Applicant-appellant is guilty of dislodging the modesty of the prosecutrix by committing sexual assault upon her. Applicant-appellant has only undergone a little more than 11 months of incarceration. The period of incarceration undergone by applicant-appellant is not so sufficient so as to enlarge the applicant-appellant on bail. Even otherwise, in view of nature of the offence committed by applicant-appellant interest of justice shall be served in case the appeal itself is heard on merits by fixing a short date rather than deciding the bail matter. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant 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, complicity of applicant-appellant and accusations made coupled with the fact that the maximum sentence awarded to the applicant is 8 years. Applicant-appellant has already been under incarceration for little more than 11 months. There is no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court. The medical evidence not supporting the prosecution story as unfolded in the deposition of the prosecutrix herself. The recital contained at page 17 of the paper book which prima facie goes to show that pre-existing enmity was there in between the applicant-appellant and the prosecutrix. In the light of above, the statement of the prosecutrix as noted by the Court below that something was given by the applicant to the prosecutrix as "Prashad" and was consumed by her neither appears to be credible nor reliable. In view of above, prima facie this Court finds that the statement of the prosecutrix is not worthy of reliance in view of her incredible character as noted above. The clean antecedents of the applicant-appellant inasmuch as he has no criminal history to his credit except present one but without making any comment on the merits of the appeal, applicant-appellant has made out a case for bail.
Let the applicant-appellant Mahaveer, be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
However, the applicant-appellant shall deposit the entire amount of fine awarded by court below within a period of one month from today failing which the bail granted to applicant-appellant shall stand cancelled and he shall be taken into custody to serve out the sentence awarded to him.
Order Date :- 22.5.2023
Imtiyaz
