Nukapeyyi Suresh vs The State Of Andhra Pradesh,
2022 Latest Caselaw 8690 AP

   HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                      ****

I.A.No. 01 of 2021 in Crl.A.No.51 of 2021

Between:-

Nukapeyyi Suresh, S/o Peddi Raju, age 25 years, R/o Ganti Pedapudilanka, H/o Ganti Pedapudi Village, P.Gannavaram Mandal. ....Appellant/Accused.

Versus

The State of Andhra Pradesh, Through Sub-Divisional Police Officer, Amalapuram, Rep. Though Public Prosecutor, High Court of Andhra Pradesh at Amaravati.

....Respondent/Complainant.

DATE OF JUDGMENT PRONOUNCED : 14.11.2022

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No

________________________ C.PRAVEEN KUMAR, J

_____________________________ B.V.L.N.CHAKRAVARTHI, J CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 2 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

*HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND * HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ I.A.No. 1 of 2021 in Crl.A.No.51 of 2021

% 14.11.2022 # Between:

Nukapeyyi Suresh, S/o Peddi Raju, age 25 years, R/o Ganti Pedapudilanka, H/o Ganti Pedapudi Village, P.Gannavaram Mandal.

....Appellant/Defendant.

Versus

The State of Andhra Pradesh, Through Sub-Divisional Police Officer, Amalapuram, Rep. Though Public Prosecutor, High Court of Andhra Pradesh at Amaravati.

....Respondent/Complainant.

! Counsel for the Appellant     : Sri Pasala Ponna Rao


^ Counsel for the
   Respondent                   : Public Prosecutor




< Gist:


> Head Note:
 CPK, J & BVLNC, J                       I.A.No.01 of 2021 in
Page 3 of 18                          Crl.A.No.51 of 2021
                                       Dated 14-11-2022



? Cases referred:

1. (1977) 4 SCC 291

2. (2020) 7 Supreme Court Cases 645

3. (2018) 3 SCC 22




This Court made the following:
 CPK, J & BVLNC, J                                I.A.No.01 of 2021 in
Page 4 of 18                                   Crl.A.No.51 of 2021
                                                Dated 14-11-2022

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

I.A.No.01 of 2021 in Criminal Appeal No.51 of 2021

ORDER:- (Per Hon'ble Sri Justice B.V.L.N.Chakravarthi)

Heard learned Counsel appearing for the

Appellant/Accused and Public Prosecutor for the State.

2. Accused filed the present application, seeking

bail, pending disposal of the Criminal Appeal No.51 of

2021.

3. The facts of the case of the Prosecution, are as

under:

i) The victim is the defacto-complainant in this

case. Victim is the younger daughter to her parents, who

discontinued her intermediate studies and has been

staying in her house. The accused, who is their neighbour,

developed acquaintance with the victim stating that he

likes her, loving her and would marry her. In the year CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 5 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

2014 also when the victim was studying in Bharathi

Vocational College at Amalapuram by staying in a hostel,

the accused used to go there and talk with her and till

completion of said course, the affair between the victim and

the accused continued.

(ii) On 23.08.2015 at 12.00 midnight, the

accused called the victim girl to the vacant house of her

grandmother, situated by the side of the house of the

victim, on the pretext of talking with her and when she

went there, inspite of her protest, the accused committed

penetrative sexual assault against her. Subsequently, the

accused participated in sexual intercourse with the victim

for four or five times in the same house. When the victim

conceived, the accused administered some medicines for

terminating the pregnancy, threatening her that he would

commit suicide if she failed to consume the tablets or

informed anybody. When the victim consumed tablets,

there was a miscarriage. When the victim insisted for

marriage, the accused refused. The matter was intimated

to the parents of the victim and a panchayat was convened, CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 6 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

where the accused declared that he has no concern for the

victim and he would not marry her. Then the matter was

reported to the police.

(iii) On 04.06.2016 basing on the report of the

victim, a case in Cr.No.97/2016 of P.Gannavaram Police

Station for the offences under Sections 417, 376, 313 of

the I.P.C., and u/s 5 (1) r/w 6 of Protection of Children

from Sexual Offences Act, 2012 (for short "POCSO Act") was

registered by the Sub-Inspector of Police, P.Gannavaram

P.S., and later on completion of investigation, the Sub-

Divisional Police Officer, Amalapuram filed a police report

(charge sheet) against the accused.

4. The accused was charged for several offences

and during the trial, in support of its case, the prosecution

examined P.Ws.1 to 12 and got marked Exs.P1 to Ex.P11.

No oral or documentary evidence was adduced on behalf of

the defence. Taking into consideration the entire evidence

and the material available on record the trial Court

convicted the petitioner/accused for the offences

punishable under Sections 417, 376 (2) (n) and 313 of the CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 7 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

IPC and also for the offence punishable u/s 5 (l) r/w 6 (1)

of the POCSO Act and sentenced him under various

counts, including the imprisonment for life for the offence

punishable under Section 6 (1) of the POCSO Act. Apart

from that, the Court directed the petitioner/Accused to pay

a sum of Rs.15,000/- towards compensation to P.W.1

under Section 33 (8) of POCSO Act. Challenging the same,

the present appeal came to be filed.

5. Pending disposal of the appeal, the present

Interlocutory Application came to be filed, seeking bail.

6. The learned counsel for the petitioner/accused

submitted that the accused was found guilty, convicted

and sentenced to suffer imprisonment for life and to pay a

fine of Rs.5,000/-, in default to suffer simple imprisonment

for a period of six months, for the offence punishable under

Section 6 (1) of the POCSO Act and was also sentenced to

suffer imprisonment for life and to pay a fine of Rs.3,000/-,

in default to suffer simple imprisonment for a period of six

months for the offence punishable under Section 313 of the

I.P.C., and he was also sentenced to suffer simple CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 8 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

imprisonment for a period of one year for the offence

punishable under Section 417 of the I.P.C., and was

directed to pay the fine amount of Rs.5,000/- as well as an

amount of Rs.15,000/- to the victim towards compensation

under Section 6 (2) and Section 33 (8) of the POCSO Act

respectively, that the material on record shows that the

victim was found to be 17 ½ years age at the time of

alleged offence and the accused and the victim were in love

and in that view of the matter, in similar circumstances,

the Hon‟ble High Court of Meghalaya in Shri Silvestar

Khonglah and another Vs. State of Meghalaya and

another held that the term „sexual assault‟ as could be

understood under the POCSO Act cannot be attributed to

an act where, there is, as pointed above, mutual love and

affection between them. He would further submit that the

accused was on bail during the trial of the case and

considering the other circumstances, the accused may be

enlarged on bail, pending disposal of the appeal filed by the

accused.

 CPK, J & BVLNC, J                              I.A.No.01 of 2021 in
Page 9 of 18                                 Crl.A.No.51 of 2021
                                              Dated 14-11-2022



7.             The   learned   Public   Prosecutor       vehemently

opposed to the release of the accused on bail, contending

that, it is a case of sexual assault on a minor girl and the

accused was responsible for the pregnancy of the victim

and he made the victim to suffer a miscarriage and the

Hon‟ble Supreme Court in Anurag Soni Vs. State of

Chattisgarh held that consent given under misconception

of marriage basing on the false promise to marry by the

accused cannot be a voluntary consent and conviction for

rape is sustainable and it is extremely reprehensible and

hated crime which defiles and degrades victim physically as

well as mentally and shakes the very core of life and dignity

and therefore, it is not a fit case to enlarge the accused on

bail.

8. Now, the point that arises for determination is:-

"Whether the petitioner/appellant can be enlarged on bail, pending disposal of the Criminal Appeal?"

POINT:-

9. Admittedly, the petitioner/accused was found

guilty for the offence punishable under section 6 (1) of the CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 10 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

POCSO Act and was sentenced to suffer imprisonment for

life and also to pay a fine of Rs.5,000/-, he was also

sentenced to suffer imprisonment for life and to pay a fine

of Rs.3,000/- for the offence punishable under Section 313

of the I.P.C., and he was also sentenced to suffer simple

imprisonment for a period of one year for the offence

punishable u/s 417 of the I.P.C., on the allegation that the

accused, who is a neighbor, developed acquaintance with

the victim under the pretext of love and making a promise

to marry her and in the year 2014 when the victim was

studying in a College, on 23.08.2015 the accused made the

victim to come to a thatched house belonging to her

grandmother, which is located by the side of the house of

the victim and there, inspite of protest by the victim, the

accused committed sexual assault and subsequently also

the accused committed sexual assault on the victim four or

five times in the pretext of later marrying her and

subsequently on coming to know that the victim conceived,

the accused administered some medicines for terminating

the pregnancy and made her to consume the tablets by CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 11 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

threatening her that he would commit suicide if she failed

to consume the medicines or informed anybody and the

victim had no other go except to consume the tablets and

go through with the miscarriage and when the victim

insisted for marriage, the accused refused and then matter

was informed to the parents of the victim and later on

04.06.2016, basing on the report of the victim, police

registered a case for the offences punishable under sections

417, 376 and 313 of the I.P.C., and section 6 (1) of the

POCSO Act and investigated the same and laid police report

(charge sheet) and the Special Court for speedy trial of the

offences under the Protection of Children from Sexual

Offences Act, 2012, after full trial found the accused guilty

of the offences punishable under Section 6 (1) of the

POCSO Act, Sections 417 and 313 of the I.P.C., and

convicted and sentenced him as stated supra.

10. The contention of the petitioner/accused is

that, the victim was aged around 17 ½ years and the

accused and the victim were in love and she voluntarily

participated in the intercourse and therefore, the term CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 12 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

„sexual assault‟ is not applicable to the facts and

circumstances of the case as laid down by the High Court

of Meghalaya in Shri Silvestar Khonglah and another Vs.

State of Meghalaya and another (Crl.Petition No.45 of

2022, dt.27.10.2022) was relied on by the learned counsel

for the accused. The learned Public Prosecutor vehemently

argued that the trial Court in its judgment found that the

evidence on record proved that the victim was a minor at

the time of the sexual assault committed by the accused

and the accused in order to remove the evidence, made the

victim to consume medicines for causing miscarriage and it

shows that the accused with a mala fide intention

promised to marry the victim girl and lured her and

subsequently caused her miscarriage and therefore, it is

not a fit case to grant bail and the prosecution proved

beyond reasonable doubt that the consent of the victim

was obtained by the accused by a false promise to marry

her, though knowing well from very beginning that he had

no such intention and therefore, it cannot be treated as

consent but amounts to cheating and consent given under CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 13 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

misconception of fact and therefore, the accused was

rightly found guilty for the offence under section 6 (1) of

the POCSO Act, which is a serious offence committed

against a child.

11. The above facts and circumstances as culled

out from the judgment, prima facie, support the

contention of the prosecution that the victim was a minor

as on the date of the incident in the case and it appears

that the accused having knowledge that the victim was a

child at the time of the incident, had sexual intercourse

with the victim and later when she became pregnant,

administered tablets to cause miscarriage and it shows

that the accused for the reasons best known to him, made

the promise of marriage and had sexual intercourse with

the victim knowing well that she was not competent to give

consent for sexual intercourse. In that view of the matter,

we do not find any ground to enlarge the accused on bail,

as the acts committed by the accused are not only against

the victim, but also against the society and the offence of

rape degrades the victim physically as well as mentally CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 14 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

and shakes very core of life and dignity of the victim as

laid down by the Hon‟ble Supreme Court in Anurag Soni

Vs. State of Chattisgarh relied on by the learned Public

Prosecutor.

12. 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 State of Punjab1 case and also in

Preet Pal Singh v. State of Uttar Pradesh and Another 2.

13. In Preet Pal Singh's case, [cited 2nd 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 paragraph

no. 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

(1977) 4 SCC 291

(2020) 7 Supreme Court Cases 645 CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 15 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

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."

14. 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 Anr3.

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 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

(2018) 3 SCC 22 CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 16 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

granting bail, as mandated in Section 389(1) of the Cr.P.C."

15. 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."

CPK, J & BVLNC, J I.A.No.01 of 2021 in Page 17 of 18 Crl.A.No.51 of 2021 Dated 14-11-2022

16. In the light of the above judgments and the

discussion, we are of the considered view that it is not a fit

case to enlarge the accused on bail, pending disposal of the

appeal. Accordingly, the point is answered against the

petitioner/ appellant.

17. Accordingly, the bail application is dismissed.

Consequently, miscellaneous petitions pending,

if any, shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

__________________________________ JUSTICE B.V.L.N.CHAKRAVATHI

Date:14.11.2022.

Dvsn / MS
 CPK, J & BVLNC, J                                  I.A.No.01 of 2021 in
Page 18 of 18                                      Crl.A.No.51 of 2021
                                                   Dated 14-11-2022

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

I.A.No.01 of 2021 in Criminal Appeal No.51 of 2021 (Per Hon'ble Sri Justice B.V.L.N.Chakravarthi)

Date:14.11.2022

dvsn