Allahabad High Court
Mukesh vs State Of U.P. And 3 Others on 24 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:116307
Court No. - 49
Case :- CRIMINAL APPEAL No. - 3962 of 2023
Appellant :- Mukesh
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Prashant Kumar Singh,Satyawan Shahi
Counsel for Respondent :- G.A.,Avanish Tripathi
Hon'ble Rajeev Misra,J.
(Order on Application for Suspension of Sentence)
1. Heard Mr. Prashant Kumar Singh, the learned counsel for applicant-appellant, the learned A.G.A. for State and Mr. Avanish Tripathi, the learned counsel representing first informant-opposite party 2.
2. Perused the record.
3. Feeling aggrieved by the judgment and order dated 24.03.2023 passed by Additional Sessions Judge/Special Judge (POCSO Act), Court No.-3, Budaun in Special Sessions Trial No. 15 of 2015 (State Vs. Mukesh) arising out of Case Crime No. 260 of 2014, under Sections 376, 506 IPC and Sections 5/6 POCSO Act, Police Station-Islamnagar, District-Budaun, applicant-appellant has preferred aforementioned criminal appeal.
4. By means of impugned judgment and order, applicant-appellant has been convicted under Section 6 POCSO Act with 10 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default in payment of fine, applicant-appellant is to undergo 6 months additional imprisonment. Under Section 506 IPC with 2 years rigorous imprisonment along with fine of Rs. 2,000/- and in case of default in payment of fine, applicant-appellant is to undergo 1 month additional rigorous imprisonment. The impugned judgment and order further records that both the sentences shall run concurrently.
5. Record shows that applicant-appellant was enlarged on bail during the pendency of trial. However, he surrendered before court below on 24.03.2023 but was taken into custody to serve out the sentence. Accordingly, the applicant-appellant has filed above-mentioned application seeking suspension of sentence/bail during the pendency of present appeal.
6. It is contended by Mr. P.K. Singh, the learned counsel for applicant-appellant that applicant-appellant has been convicted under Section 6 POCSO Act and Section 506 IPC. However, the maximum sentence awarded to applicant-appellant is 10 years. There are no likelihood of the appeal being heard in near future on account of heavy pendency of appeals before this Court. He has then invited the attention of Court to paragraph 16 of the impugned judgment at page 14-15 of the paper book and on basis thereof, he submits that the prosecutrix is a willing and consenting party. As such, no offence as complained of can be said to have been committed by applicant-appellant. Even otherwise, applicant-appellant is a man of clean antecedents inasmuch as, 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 is liable to be enlarged on bail during the pendency of present appeal.
7. 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 is guilty of committing an offence punishable under Section 6 of the POCSO Act and Section 506 IPC. Offence complained of is not private in nature but a crime against society. Offence committed by applicant-appellant falls in the category what is described as "moral turpitude". The prosecutrix is a young girl aged about 16 years as per the ossification test. It has came in the statement of the prosecutrix as recorded by court below in paragraph 16 of the impugned judgment at page 14-15 of the paper book that the modesty of the prosecutrix was repeatedly dislodged by the applicant-appellant upon the consent of the prosecutrix. At this juncture, the learned A.G.A. has relied upon the judgment of Supreme Court in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194. He, therefore, submits that in view of above, the consent, if any, of the prosecutrix is wholly immaterial. Applicant-appellant is a married man and yet he indulged in physical in relationship with the prosecutrix which can not be sustained in any manner. On the above premise, the learned A.G.A. submits that applicant-appellant does not deserve any sympathy of this Court.
8. Mr. Avanish Tripathi, the learned counsel representing opposite party 2 has adopted the arguments raised by the learned A.G.A.
9. Having heard, the learned counsel for applicant-appellant, the learned A.G.A. for State, Mr. Avanish Tripathi, the learned counsel representing opposite party 2 and upon perusal of record, evidence, complicity of applicant-appellant, accusations made and coupled with the fact that the prosecutrix is a young girl aged about 16 years as per ossification test, the modesty of the prosecutrix having been dislodged by the applicant-appellant repeatedly and frequently, since the prosecutrix is below 16 years of age, therefore, her consent, if any, is immaterial in view of judgment of Supreme Court referred to above, the marital status of applicant-appellant, the heinous nature of the crime and also the judgment of Supreme Court in Manoj Kumar Khokhar Vs. State of Rajasthan and Another (2022) 3 SCC 501, this Court does not find any good ground to enlarge the applicant-appellant on bail.
10. In view of above, the application for suspension of sentence fails and is liable to be rejected.
11. It is accordingly rejected.
Order Date :- 24.5.2023
Vinay
