Andhra Pradesh High Court - Amravati

The vs The State Of Uttar Pradesh And on 11 February, 2022

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                               AND
     THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                     I.A.No.01 of 2021
                             in
               Criminal Appeal No.347 of 2021

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

      The petitioner is the sole accused, in POCSO Sessions

Case No.32 of 2016 [New POCSO Sessions Case No.18 of

2019] on the file of learned I Additional District & Sessions

Judge, Nellore, (FAC) Special Judge for Speedy Trial of

Offences under POCSO Act, Nellore, filed the present

application, seeking bail pending disposal of the appeal

before this Court.


2.    The   petitioner   herein was tried for       the   offences

punishable under Sections 366, 376(2)(i) Indian Penal Code

[for short, "I.P.C."] and under Section 3 read with Section 4

of POCSO Act, 2012 in Sessions Case, as referred to above.

Vide Judgment, dated 23.09.2021, the learned Sessions

Judge found the accused guilty of all the three charges

referred to above and sentenced him to suffer Rigorous

Imprisonment for ten (10) years and to pay a fine of

Rs.50,000/-, in default, to suffer Simple Imprisonment for

three (3) years for the offence under Section 366 I.P.C. The

accused     was   further   sentenced     to   undergo    Rigorous

Imprisonment for life and to pay a fine of Rs.1,00,000/-, in

default, to suffer Simple Imprisonment for a period of three
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                                                                  I.A.No.01 of 2021 in
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(3) years for the offence under Section 3 read with Section 4

of POCSO Act read with Section 376(2)(i) I.P.C. read with

Section 42 of POCSO Act.


3.        Sri Jada Sravan Kumar, learned counsel for the

petitioner, mainly submits that there is absolutely no

evidence on record to connect the accused with the crime.

He took us through the evidence of the doctor to show that

there       was        no   sexual   intercourse    at    all.    Taking        into

consideration the age of the accused and the age of the victim

he would submit that no offence is made out against the

accused.


4.        On the other hand, Sri S. Dushyanth Reddy, learned

Additional Public Prosecutor opposed the same. According to

him, in view of the judgment of Hon‟ble Supreme Court in

Preet Pal Singh vs. The State of Uttar Pradesh and

others1 and taking into consideration the manner, in which,

the accused tried to delay the trial coupled with the evidence

of P.Ws.1 to 4, which remained un-impeached, would submit

that it is not a fit case to grant bail.


5.        The brief facts, which are as under:-

          (i)   P.W.1       the   victim   girl   was    studying       1st    year

Intermediate at St. Mary‟s College, Gudur and whenever she

comes to her village, she used to visit fields to graze the

1
    (2020) 8 SCC 645
                                3
                                                  CPK, J & Dr. KMR, J
                                                  I.A.No.01 of 2021 in
                                                 Crl.A.No.347 of 2021


cattle.   A year prior to the date of incident, the accused is

said to have developed acquaintance with P.W.1 and both of

them fell in love with each other. It is said that the accused

promised to marry her, but when it came to the notice of the

parents of P.W.1, they warned them.

      (ii) It is the case of the prosecution that on 27.10.2015,

the victim girl came to her village to secure S.S.C. marks list

in order to submit the same in her college. At that time, the

accused approached her at Z.P. High School and insisted her

to get down at Nellore South Railway Station, instead of

Gudur Railway Station. Believing the words, she boarded the

train to go to Nellore Railway Station on 28.10.2015. As per

the directions of the accused, P.W.1 got down at Nellore,

where the accused picked her up and talked with her till

night in the Station and thereafter took her to nearby bushes

and had sexual intercourse with a promise to marry her.

Later, he left Nellore, requesting P.W.1 to stay in Nellore. As

there was no response from the accused, P.W.1 went to

Nellore Hospital and met P.W.6, who is her friend and stayed

with her.

      (iii) On the next day, the accused came to Nellore

Hospital, met the victim and P.W.6 and then went away. As

whereabouts of victim girl has not known, the mother of the

victim P.W.2 lodged a report and set the law into motion.
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                                                 CPK, J & Dr. KMR, J
                                                 I.A.No.01 of 2021 in
                                                Crl.A.No.347 of 2021


     (iv) During the course of investigation, P.W.1 was sent

for medical examination and subjected to medical tests. The

accused was also examined for his potency. After completing

the investigation, a Charge Sheet came to be filed. In support

of its case, the prosecution examined P.Ws.1 to 12 and got

marked Exs.P1 to P12.


6.   Having regard to the evidence available on record, the

trial Court convicted the accused for the offences referred to

earlier. P.W.1 in her evidence in chief categorically deposed

that she was studying 10th class in the year 2015 and was

studying Intermediate in St. Joseph‟s College, Gudur by

staying in a hostel.    The facts spelt out by P.W.1, in her

evidence would show that she was aged about 16 years at the

time of incident. She was examined in chief on 07.03.2019

and no cross-examination was done immediately after the

chief and accordingly the Court recorded it as „NIL'.

Thereafter, P.W.1 was recalled pursuant to an application

made and was cross-examined on 16.08.2019.             She was

subjected to cross-examine at length, but we feel that

nothing has been elicited which could help the accused.


7.   On the other hand, a suggestion given to P.W.1 that a

false complaint has been made against the accused as he

refused to marry her, was denied by her.       It was further

elicited that after the incident, she stayed with P.W.6 for
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                                                   I.A.No.01 of 2021 in
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nearly three days and thereafter informed her mother on

phone, and thereafter they went to the Police Station to lodge

a report.    P.Ws.2 and 3 are the parents of P.W.1 whose

evidence toes in line with the evidence of P.W.1 in all material

aspects.    Similarly, P.W.4 is the maternal uncle of P.W.1

whose      version   corroborates   the   evidence    of    P.Ws.2

and 3 in all aspects.


8.   P.W.5 is the Headmistress in Z.P.P. Girls High School,

Indukurupet, who in her evidence deposed that she issued

the Study and Conduct Certificate of P.W.1 which discloses

that the victim studied school from 2011 to 2015 and the

date of birth as per School records is 23.05.2000. Ex.P3 is

the said certificate.   If the said date of birth is taking into

consideration, the injured would be around 16 years of age at

the time of commission of the offence.


9.   Though, the learned counsel for the petitioner tried to

contend when P.W.1 admitted in the cross-examination that

she is 19 years of age in the year 2015, Ex.P3 cannot be

looked into, but it appears that she being a girl was not in a

position to give the date correctly.      It is to be noted that

P.W.2 gives a different age to the victim in her cross.

Therefore, at this stage, the certificate issued by P.W.5 will

assume some significance to decide the age since there is no

evidence except the evidence of P.W.5 and Ex.P3 which
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                                                  I.A.No.01 of 2021 in
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clearly show that the victim was aged about 16 years on the

date of incident i.e., in the year 2015.


10.   At this stage, it would be just and proper for us to

narrate as to how the age of the injured varied from witness

to witness. At first instance, as stated by us earlier, P.Ws.1

and 2 were examined on 07.03.2019, but they were not

cross-examined on that day. A recall application was filed,

which was allowed five months later and thereafter P.Ws.1

and 2 were cross-examined.       Similarly, P.W.3 the father of

the victim was examined on 08.03.2019 and on the same day

he was also cross-examined. Again, the defence filed a recall

application of P.Ws.2 and 3, which was allowed and they

were further cross-examined on 02.12.2019 i.e., after nine

months from the date of their chief examination.          At that

time, they deposed that the age of the victim as 18 years in

the year 2015. Obviously, it appears to be a case where the

accused managed the witness to give a different picture of the

age of the victim.


11.   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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                                                                     CPK, J & Dr. KMR, J
                                                                     I.A.No.01 of 2021 in
                                                                    Crl.A.No.347 of 2021


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

of Uttar Pradesh and Another3.


12.     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

CPK, J & Dr. KMR, J I.A.No.01 of 2021 in Crl.A.No.347 of 2021

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, 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.

13. As the trial Court convicted the accused after

appreciating the evidence of victim, her parents and the

medical evidence, reanalysing the same evidence and taking

a different view at this stage and suspending the sentence

pending appeal may not be proper in view of the observations

made by Hon‟ble Supreme Court in Para No.38 of Preetpal

[supra].

14. It is also to be noted here the Section 29 of the POCSO

Act deals with presumption, which reads as under:-

CPK, J & Dr. KMR, J I.A.No.01 of 2021 in Crl.A.No.347 of 2021

"Section 29: Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

15. A reading of the above provision makes it clear that

where a person is prosecuting for committing or abetting or

attempting to commit an offence under Section 3, 5, 7 and

Section 9 of POCSO Act, the Special Court shall presume,

that such person has committed or abetted or attempted to

commit the offence, unless the contrary is proved. It may not

be necessary to go in detail into the said provision at this

stage, but having regard to the other circumstances namely

the age of the victim, the manner in which the incident took

place and the conduct of the accused in making every effort to

delay the process coupled with Section 29 of the POCSO Act,

we feel that it is not a fit case to grant bail.