Bombay High Court
Yogesh Sanjay Narad vs The State Of Mah. Pso, Ps Bela, Tah. Umred ... on 6 February, 2024
2024:BHC-NAG:1545
56.appa.84.24.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.84 OF 2024
IN
CRIMINAL APPEAL NO.42 OF 2024
(Yogesh Sanjay Narad Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. M.V. Amale, Advocate for the appellant.
Mrs. M.H. Deshmukh, APP for the State.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- FEBRUARY 6, 2024.
By this application, the appellant is seeking
suspension of sentence and releasing him on bail.
2. The appellant was prosecuted for the offence
punishable under Sections 366-A, 506 of the Indian Penal
Code and Section 6 of the Protection of Children from
Sexual Offences (POCSO) Act, 2012.
3. Learned trial Court after appreciating the
evidence, convicted the appellant and sentenced to suffer
rigorous imprisonment for two years and to pay fine of
Rs.2,000/- for the offence punishable under Section 366-A
of the Indian Penal Code and in default rigorous
imprisonment of two months. The present appellant is
also convicted of the offence punishable under Section
506 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for three months and to pay fine of
Rs.500/- in default, to suffer further rigorous
imprisonment for 7 days. The appellant is also convicted
of the offence punishable under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 and
sentenced to suffer rigorous imprisonment for ten years
and to pay fine of Rs.5000/- in default, to suffer further
rigorous imprisonment for six months.
4. Being aggrieved with the same, present
appeal is preferred by the appellant along with the
application for suspension of sentence and releasing the
appellant on bail.
5. Learned Counsel for the appellant submitted
that the entire judgment and order of conviction is based
upon the evidence of the victim who has not narrated the
alleged incident before the police as far as present
appellant is concerned. There is no single whisper in the
FIR that present appellant has subjected the victim for
sexual assault. First time, in Court she come with the story
that she was subjected for sexual assault by the present
appellant also. PW-2 who is the member of Women Cell of
Bela police station has also not supported the prosecution
story and PW-1 is the Panch regarding the spot of incident.
He invited my attention towards the evidence of the
victim and submitted that, in evidence first time the victim
has alleged that present appellant has subjected her for
sexual assault. In fact, in the FIR and her supplementary
statement she has not uttered the single word that the
present appellant has subjected her for sexual assault.
During her cross-examination, the facts are brought on
record which shows that though she was having an
opportunity to make her grievances, she has not made any
complaint against the present appellant. Her cross-
examination even shows that she is not aware about the
name of the sister who is residing at Hinganghat at whose
house allegedly the incident of sexual assault has taken
place. He submitted that during her evidence, she has
exonerated the co-accused Anil and only made allegations
against the present appellant which is completely contrary
to the FIR registered by her. He submitted that entire
version of the prosecutrix regarding the role of the present
appellant is in the manner of omission which amounts to
contradiction. Considering the evidence of the victim, the
appellant has every chance of success in the present
appeal. The learned trial Court has not considered this
fact and erroneously convicted the appellant. However,
the appeal will take its own time for its final decision. In
the meanwhile, if sentence is executed then allowing the
appellant to remain behind bar will cause prejudice to him
and there will be irreparable loss to the present appellant.
6. Learned Additional Public Prosecutor strongly
opposed the application on the ground that the learned
trial Court has rightly appreciated the evidence which
shows that it is the present appellant who subjected her
for sexual assault which is also supported by the other
medical evidence as well as the evidence of the
Investigating Officer. Thus, the appeal filed by the
appellant is groundless. In view of that, the application
deserves to be rejected.
7. After hearing the learned Counsel for the
appellant and after perusal of the evidence on record,
there is no dispute as to the fact submitted by the learned
Counsel for the appellant that in the FIR there is no single
allegation made by the present victim alleging that the
present appellant is one of the person who subjected her
for sexual assault. The entire FIR is against the co-accused
Anil and the allegation of sexual assault are against the
co-accused Anil. Even there is no name mentioned of the
present appellant in the FIR. In her subsequent statement
also she has not narrated any role to the present
appellant. Thus, her entire evidence narrating the role of
the present appellant is in the nature of the omission and
she has modulated her evidence only to implicate the
present appellant in the alleged offence. The scope of
Section 389 of the Code of Criminal Procedure is to the
extent of postponement or temporarily preventing the
appellant from sending behind bar and the execution of
the sentence. The Honourable Apex Court in recent
decision of Omprakash Sahni Vs. Jai Shankar Chaudhary
in Criminal Appeal No.1331-1332/2023 decided on
02/05/2023 along with the connected appeals dealt with
the aspect of suspension of sentence and observed that
when we speak of suspension of sentence after conviction,
the idea is to defer or postpone the execution of the
sentence. The purpose of postponement of sentence
cannot be achieved by detaining the convict in jail; hence,
as a natural consequence of postponement of execution,
the convict may be enlarged on bail till further orders. It is
further observed that the principle underlying the theory
of criminal jurisprudence in our country is that an accused
is presumed to be innocent till he is held guilty by a court
of the competent jurisdiction. Once the accused is held
guilty, the presumption of innocence gets erased. In the
same manner, if the accused is acquitted, then the
presumption of innocence gets further fortified. From
perusal of Section 389 of the CrPC, it is evident that save
and except the matter falling under the category of sub-
section 3 neither any specific principle of law is laid down
nor any criteria has been fixed for consideration of the
prayer of the convict and further, having a judgment of
conviction erasing the presumption leaning in favour of
the accused regarding innocence till contrary recorded by
the court of the competent jurisdiction, and in the
aforesaid background, there happens to be a fine
distinction between the prayer for bail at the
pre-conviction as well as the post-conviction stage, i.e.
Sections 437, 438, 439 and 389(1) of the Cr.P.C. After
referring the various earlier decisions, the Honorable Apex
Court further held that bearing in mind the aforesaid
principles of law, the endeavour on the part of the Court,
therefore, should be to see as to whether the case
presented by the prosecution and accepted by the Trial
Court can be said to be a case in which, ultimately the
convict stands for fair chances of acquittal. If the answer
to the above said question is to be in the affirmative, as a
necessary corollary, we shall have to say that, if ultimately
the convict appears to be entitled to have an acquittal at
the hands of this Court, he should not be kept behind the
bars for a pretty long time till the conclusion of the
appeal, which usually take very long for decision and
disposal. However, while undertaking the exercise to
ascertain whether the convict has fair chances of acquittal,
what is to be looked into is something palpable. To put it
in other words, something which is very apparent or gross
on the face of the record, on the basis of which, the Court
can arrive at a prima facie satisfaction that the conviction
may not be sustainable. The Appellate Court should not
reappreciate the evidence at the stage of Section 389 of
the Cr.P.C. and try to pick up few lacunas or loopholes here
or there in the case of the prosecution. Such would not be
a correct approach.
8. In the light of the above observation while
considering the application for suspension of sentence, the
appellant has to show that on appreciation of evidence
there is something between palpable and which can affect
the decision of the trial Court. "Palpable" as per the
Oxford dictionary is that which is easily noticed by the
mind or senses. The Cambridge dictionary described the
"Palpable" as so obvious that it can easily be seen or
known or (of a feeling) so strong that it seems as if it can
be touched or physically felt. "Palpable" means an error
that is obvious.
9. If this settled law is applied to the facts of the
present case admittedly, there were no allegations against
the present appellant when the FIR was lodged. First time
the victim made allegation against the present appellant
and exonerated the other co-accused against whom she
has lodged the FIR. Thus, there is an obvious reasons
which are shown by the present appellant to entertain this
application. Admittedly, if in future the appeal is allowed
and the appellant undergoes the sentence then irreparable
loss would cause to him and it would cause prejudice to
him. Admittedly, there are no chances of disposal of the
appeal in near future.
10. In the light of the above circumstances, the
application for suspension of sentence deserves to be
allowed. Accordingly, I proceed to pass following order :
(i) The application is allowed.
(ii) The execution of the sentence is hereby
suspended till final disposal of the appeal.
(iii) The applicant be released on bail on
executing P.R. Bond in the sum of Rs.25,000/-
(Rs. Twenty five thousand) with one surety in
the like amount.
(iv) The applicant shall attend the trial
Court on first day of every month and the
trial Court shall record his presence.
(v) The applicant shall furnish his
Cell-phone number and address along with
address proof before the trial Court.
11. The application stands disposed of.
CRIMINAL APPEAL NO.42 OF 2024
Heard.
2. ADMIT.
3. Call for R. & P.
4. Issue notice to respondent.
5. Learned APP waives notice for the State.
6. Place the appeal before the Court after
preparation of the paper book and after receipt of R. & P.
(URMILA JOSHI-PHALKE, J.)
*Divya
