Allahabad High Court
Junaid Ahmad vs State Of U.P. on 22 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:112599
Court No. - 49
Case :- CRIMINAL APPEAL No. - 2675 of 2022
Appellant :- Junaid Ahmad
Respondent :- State of U.P.
Counsel for Appellant :- Nasira Adil,Sr. Advocate
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
ORDER ON THE BAIL APPLICATION
Heard Mr. N.I. Jafri, Senior Advocate assisted by Mr. Jamal Ali, Advocate holding brief of Mrs. Nasira Ali, 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 11.4.2022 passed by Additional District and Sessions Judge F.T.C., Court No. 2, Gorakhpur in Sessions Trial No. 45 of 2023 (State Vs. Junaid Ahmad and two others), under Sections 376, 323, 504, 506 I.P.C., Police Station Mahila Thana, District Gorakhpur, applicant appellant has preferred aforementioned Criminal Appeal.
By means of impugned judgment and order referred to above, applicant appellant had been convicted under Section 376 I.P.C. and consequently sentenced to seven years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in the payment of fine applicant appellant is to undergo two months addition simple imprisonment. Applicant appellant has however been acquitted of the charges under Section 323, 504, 506 I.P.C.
Record shows that applicant appellant was on bail during the pendency of trial. He however surrendered before court below on 11.4.2022 and was taken into custody to serve out the sentence so awarded by means of the impugned judgment and order. referred to above. Accordingly, applicant appellant has filed aforementioned application seeking his enlargement on bail during the pendency of present appeal.
Learned senior counsel for applicant appellant contends that applicant appellant has been convicted and sentenced under Section 376 I.P.C. However the maximum sentence awarded to the applicant appellant is seven years. There is no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court Applicant appellant is in jail since 11.4.2022. As such, he has undergone more than one year of incarceration subsequent to the judgment and order dated 11.4.2022. It is then contended that the prosecutrix is a consenting party. Attention of the Court was ten invited to the statement of the prosecutrix as dealt with by court below at page-11 of the paper book. It is further contended that P.W. 3, P.W. 4 and P.W. 5 have not supported the prosecution case and have turned hostile. Even otherwise applicant appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. On the above premise, he contends 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 applicant appellant is a convicted accused and therefore he does not deserve any indulgence by this Court in favour of applicant appellant. Applicant appellant had been convicted for an offence under Section 376 I.P.C. 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 in spite of deciding the bail matter. Attention of the Court was then invited to the statement of the prosecutrix as dealt with by court below at page-11 of the paper book. In her deposition before court below the prosecutrix has categorically stated that applicant had promised her of marriage but he resiled from the same. Modesty of the prosecutrix was continuously dislodged by applicant appellant on account of false promise of marriage. At this juncture, learned A.G.A. referred to following judgments of the Supreme Court.
(i) Pramod Suryabhan Pawar Vs. State of Maharashtra and another (2019) 9 Supreme Court Cases 608
(ii) Maheshwar Tigga Vs. State of Jharkhand (2020) 10 Supreme Court Cases 108
(iii) Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and anther (2021) SCC On Line SC 181
(iv) Mandar Deepak Pawar Vs. State of Maharashtra and another in Criminal Appeal No. 442 of 2022
According to the learned A.G.A, the prosecutrix is a young girl aged about eighteen years whose modesty was dislodged by applicant appellant repeatedly and forcibly by committing sexual assault upon her. Learned A.G.A. contends that no sympathy be shown by this Court in favour of applicant appellant. The period of incarceration undergone by applicant appellant by itself is not so substantial so as to enlarge the applicant on bail. It is thus urged that bail application is liable to be rejected by this Court.
When confronted with above, the learned senior counsel for applicant could not overcome the same with reference to the record at this stage.
Having heard the learned senior 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 Section 376 I.P.C., offence complained of is not private in nature but a crime against society, the prosecutrix being a young girl aged about eighteen years, the modesty of the prosecutrix having been dislodged by committing sexual assault upon her repeatedly and continuously on the basis of false promise of marriage, the judgments of the Supreme Court as noted above, incarceration undergone by the applicant appellant being no substantial so as to enlarge him on bail, this Court does not find any good ground to enlarge the applicant appellant on bail. The bail application therefore fails and is liable to be rejected.
It is, accordingly, rejected.
Order Date :- 22.5.2023
Aiman
