Andhra Pradesh High Court - Amravati

Pyrdhala Yesubabu vs The State Of Andhra Pradesh, on 4 February, 2022

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

I.A.No.01 of 2021 in Criminal Appeal No.1274 of 2016

ORDER: (Per Hon'ble Sri Justice C. Praveen Kumar)

The present application is filed by the petitioner/A.1,

seeking bail on two grounds (i) as he has completed five years

of imprisonment from the date of judgment [22.11.2016] and

(ii) even accepting the entire case to be true, no offence is

made out against the petitioner/A.1.

2. The petitioner herein, who is A.1, was tried along with

A.2 and A.3 for the offences punishable under Sections

376(2) and 306 IPC r/w.Section 4 of POCSO Act, 2012. The

petitioner/A.1 was sentenced to suffer Imprisonment for Life

and to pay a fine of Rs.10,000/-, in default to suffer Simple

Imprisonment for three months for the offence under Section

376(2) IPC and Section 4 of POCSO Act; he was further

sentenced to suffer Rigorous Imprisonment for a period of

Ten years and also to pay a fine of Rs.10,000/-, in default to

suffer Simple Imprisonment for three months for the offence

under Section 306 IPC. The substantive sentences were

directed to run concurrently.

(i) A.2 and A.3 were sentenced to suffer Rigorous

Imprisonment for Ten years and also to pay a fine of

Rs.5000/- each for the offences under Section 376

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r/w.Section 109 IPC and Section 4 r/w. Section 17 of POCSO

Act, in default to suffer Simple Imprisonment for three

months each.

3. Challenging the said conviction imposed in Sessions

Case No.65 of 2015 on the file of the Special Judge

Constituted under POCSO Act-cum-I Additional Sessions

Judge, Guntur, the present Crl.A.No.1274 of 2016 came to be

filed. Pending appeal, the present application came to be

filed seeking bail on the two grounds as stated supra.

4. Before dealing with the same, it would be appropriate to

refer to the facts in issue:-

(i) The deceased by name Sindhu was aged about 16

years and used to attend coolie work. While so, in the month

of February, 2014, she along with other coolies and A.1 used

to go to Rajahmundry for coolie work. During their travel,

A.1 and the deceased fell in love and A.1 cohabited with the

deceased under the guise of marriage. When the deceased

came to know that A.1 married another woman, she stopped

talking with him, but A.1 continued his intimacy with the

deceased by deceitful words.

(ii) It is said that on 10.10.2014, in the absence of

parents of the deceased in her house, A.1 called her to

Amaravathi and when the deceased reached Amaravathi, A.1

to A.3 along with the deceased went to Thammavaram village

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and thereafter, A.2 dropped the deceased at the house of

P.W.7, as her house was locked. On the next day morning

i.e., on 11.10.2014, the deceased went to her house and after

her father left home, the deceased in flames, came on to the

road, raising cries. The neighbours extinguished the flames

and shifted her to Community Health Centre, Amaravathi.

On the same day, P.W.19-Judicial Magistrate of First Class

recorded the Dying Declaration of the deceased wherein she

stated that on the advice of her soul, poured kerosene and

set her on fire.

(iii) Later, i.e., on 17.10.2014, the deceased made

another statement stating that A.1 called her to

Tammavaram Village and on her arrival, A.1 to A.3 took her

in to bushes at Tammavaram Village, where A.1 committed

rape on her. Thereafter, A.2 brought her and dropped her at

the house of P.W.7. As she was mentally hurt with the acts

of A.1, she poured kerosene and set her on fire. The

deceased died on 18.10.2014.

5. In so far as the merits of the case are concerned,

Sri M. Chalapathi Rao, learned counsel for the

petitioner/A.1, would submit that the endorsement/entry

made in the Medical Intimation Register maintained by the

Casualty Medical Officer, Guntur, would disclose that she

burnt herself at 10 AM. on 11.10.2014. Thereafter, the Police

recorded the statement under Ex.P11 at 1.30 PM while at

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4.00 PM, the Magistrate recorded her statement. According to

him a reading of Dying Declaration, would clearly disclose

that a false case has been filed implicating the petitioner as

an accused.

6. Referring to the Inpatient Nominal Register, learned

counsel would submit that since it is a case of suicide and in

the absence of any evidence to show that there was any

instigation or abetment by the accused, he would submit that

the conviction has to be set aside. He relied upon the

statement of the injured recorded by Head Constable, which

is marked as Ex.P11, which would show that the deceased

committed suicide when nobody was present in the house.

7. Having regard to the fact that A.2 and A.3 are on bail,

he would submit that the request of the petitioner for release

be considered, more so, when he has completed five years of

imprisonment from the date of judgment.

8. The same is opposed by Sri S. Dushyanth Reddy,

learned Additional Public Prosecutor, contending that it is a

grave offence where a minor girl was raped. Apart from that

he contended that the application of the petitioner was

already rejected by this Court on a number of occasions, and

as such, he is not entitled for any bail.

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9. Before proceeding further, it would be appropriate to

refer to the judgment of Division Bench of this Court in

Batchu Rangarao & others v. State of A.P. 1, which reads

as under:

(3) In the following categories of cases, the convicts will not be entitled to be released on bail, despite their satisfying the criteria in (1) and (2) supra:

The offences relating to rape coupled with murder of minor children, dacoity, murder for gain, kidnapping for ransom, killing of the public servants, the offences falling under the National Security Act and the offences pertaining to narcotic drugs.

(4) While granting bail, the two following conditions apart from usual conditions have to be imposed, viz., (1) the appellants on bail must be present before the Court at the time of hearing of the Criminal Appeals; and (2) they must report in the respective Police Stations once in a month during the bail period.

This broad criteria cannot be understood as invariable principles and the Bench hearing the bail applications may exercise its discretion either for granting or rejecting the bail based on the facts of each case. Needless to observe that grant of bail based on these principles shall, however, be subject to the provisions of Section-389 of the Code of Criminal Procedure."

10. A reading of the above judgment nodoubt disclose that,

if the case of the accused does not fall within the exceptions

carved out in the said judgment, the petitioner can be

released on bail on a certain terms and conditions. But, at

the same time, the judgment categorically states that the

2016 (3) ALT (Crl.) 505 (DB) (A.P).

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Court has the discretion to deal with the bail application and

decide as to whether it is a case to grant bail or not.

11. Keeping in view the aforementioned principles, we shall

now proceed to deal with the case on hand. As seen from the

record, the petitioner moved this Court seeking bail number

of times. The order passed by this Court on 28.09.2019

would indicate that the request of the petitioner for bail on

merits was rejected on 21.12.2016 in Crl.A.M.P.No.1274 of

2016. Further, on 23.10.2018 the petitioner filed another

application for bail vide I.A.No.1 of 2018, but after arguing

the matter for some time and when the Court was reluctant

to grant relief, withdrew the same. Similarly, another

application was filed on 19.12.2018 vide I.A.No.2 of 2018 and

the same was also dismissed as withdrawn. Later on, the

petitioner filed I.A.No.1 of 2019 seeking bail, which was

rejected on 28.09.2019. Similarly, an application vide

I.A.No.1 of 2020 seeking bail came to be filed, which was also

dismissed as withdrawn on 24.07.2021. That being the

position, the question of granting bail to the petitioner on

merits would not arise as there are no changed

circumstances.

12. As stated earlier, the petitioner is charged with serious

offences punishable under Sections 376(2), 306 IPC and

Section 4 r/w. Section 17 of POCSO Act. In the absence of

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any changed circumstances, the request of the petitioner

seeking bail cannot be accepted.

13. Coming to the applicability of Batchu Rangarao, it is to

be noted that it is not mandatory that whenever accused

completes five years of imprisonment from the date of

conviction, he has to be released on bail. Infact, as observed

by earlier, discretion is left to the Court to consider each case

on its own merits.

14. As seen from the record, there is a Dying Declaration

recorded by the Magistrate, in which, the deceased stated

that she poured kerosene and set her on fire. There is a

second Dying Declaration recorded at 2 PM, wherein the

deceased narrated the circumstances which lead to

commission of suicide. In the said Dying Declaration, the

deceased categorically stated about the involvement of A.1 in

the commission of rape. The issue as to whether the second

Dying Declaration can be relied upon or not, cannot be gone

into merits at this stage.

15. The hearing of a bail application pending disposal of the

appeal amounts to hearing of the appeal itself and the

practice of hearing a bail application was commented upon

by the Hon'ble Supreme Court in Kashmira Singh v. The

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State of Punjab2 case and also in Preet Pal Singh v. State

of Uttar Pradesh and Another3.

16. In Preet Pal Singh's case, [cited 3rd supra], the Hon'ble

Supreme Court in paragraph no. 24 framed an issue as to

whether "the High Court was justified in directing release of

the Respondent No.2 on bail, during the pendency of his

appeal before the High Court". In Para 26 of the said

judgment, the court held as under:

"As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab and Babu Singh and Ors. v. State of U.P."

In paragraph 35, the Hon'ble Supreme Court held as under:

"There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v.

State of U.P. and Anr4. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the

(1977) 4 SCC 291

(2020) 7 Supreme Court Cases 645

(2018) 3 SCC 22

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principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C."

Similarly, in paragraph no. 38 and 40, the Hon'ble Supreme

Court held as under:

"38. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re- analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

40. It is difficult to appreciate how the High Court could casually have suspended the execution of the sentence and granted bail to the Respondent No.2 without recording any reasons, with the casual observation of force in the argument made on behalf of the Appellant before the High Court, that is, the Respondent No.2 herein. In effect, at the stage of an application under Section 389 of the CrPC, the High Court found merit in the submission that the brother of the victim not having been examined, the contention of the Respondent No.2, being the Appellant before the High Court, that the amount of Rs.2,50,000/- was taken as a loan was not refuted, ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim's parents."

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17. For the aforesaid reasons, in the absence of any

changed circumstances and in view of the judgments of

Supreme Court referred to above, we see no grounds to grant

bail to the petitioner/A1.

18. Accordingly, the bail application is dismissed. As the

Criminal Appeal is of the year 2016, the Registry is directed to

prepare the booklet, if not already prepared and post the

Criminal Appeal for final hearing after six (6) weeks.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE RAVI NATH TILHARI

Date: 04.02.2022.

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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND