Shri Yumnam Naocha vs The State Of Manipur Represented ...
2023 Latest Caselaw 297 Mani

SHAMURAILATPAM                            Digitally signed by
                                          SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA                             Date: 2023.10.30 16:49:08 +05'30'                   Page |1


                                        IN THE HIGH COURT OF MANIPUR
                                                  AT IMPHAL

                                              MC(Cril.A.) No. 2 of 2020
                                            Ref:- Cril. Appeal No. 9 of 2020

                             Shri Yumnam Naocha, aged about 24 years, S/o
                             Yumnam Ranjit Singh of Pukhao Khabam Awang Leikai,
                             P.O. Pangei & P.S. Sagolmang Imphal East District,
                             Manipur - 795005.

                                                                          ... Petitioner/Appellant

                                                        -VERSUS-

                             The State of Manipur represented by the Chief Secretary,
                             (Home) Govt. of Manipur, Secretariat (Old Block),
                             Babupara, Imphal -795001.
                                                                                   ... Respondent

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Appellant :: Mr. S. Bikash Sharma, Adv.

Mr. T. Rajendra, Sr. Adv.

                    For the Respondent                  ::        Mr. H. Samarjit, Addl. PP

                    Date of Hearing and
                    reserving Judgment & Order ::                 12.10.2023

                    Date of Judgment & Order                 ::   30.10.2023


                                               JUDGMENT AND ORDER
                                                     (CAV)

This petition has been filed by the petitioner under

Section 389 Cr.P.C. praying to suspend the judgment of conviction

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |2

dated 26.11.2019 and the order of sentence dated 29.11.2019

passed by the learned Special Judge (POCSO), Imphal East in

Special Trial (POCSO) Case No.4 of 2017 and to release the

petitioner on bail during the pendency of the appeal.

2. The petitioner, who has been arrayed as an accused

in Special Trial (POCSO) Case No.4 of 2017 on the file of the

learned Special Judge (POCSO), Imphal East, was convicted

under Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (for short, "the POCSO Act") by the judgment

dated 26.11.2019 and listed the case on 29.11.2019 for sentence

hearing. On 29.11.2019, the petitioner was produced before the

learned Special Judge, Imphal East and after hearing the

petitioner and his counsel, the petitioner was sentenced to

undergo rigorous imprisonment for a period of 12 years and to pay

fine of Rs.10,000/- under Section 6 of POCSO Act and in default

to undergo three months simple imprisonment. The learned

Special Judge also ordered that the said fine amount if deposited,

the same shall be given to the victim girl as compensation. That

apart, the learned Special Judge also recommended for provision

of victim compensation to the tune of Rs.5.00 lakh under Section

33(8) of POCSO Act to the victim. The learned Special Judge

also ordered the period which has already undergone by the

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |3

petitioner in the judicial custody during the period of investigation

as well as during the trial, if any, shall be set-off from the sentence

awarded.

3. Aggrieved by the conviction and sentence imposed

on the petitioner, the petitioner has filed Criminal Appeal No.9 of

2020 before this Court. Along with the appeal, the petitioner has

filed petition seeking to suspend the sentence stating that he has

a very good case on merits and is likely to succeed in the appeal

filed by him.

4. Mr. S. Bikash Sharma, the learned counsel for the

petitioner submitted that there are lot of infirmities in the impugned

judgment and that the petitioner has got good case on merits to

succeed. He would submit that the petitioner is in jail since the

date of arrest on 10.11.2016 which was about 6 years and 11

months and have to spend another about 5 years and 1 month in

the jail. He would submit that spending the time in the jail, there

was no criminal record of the petitioner.

5. The learned counsel then submitted that release of

the petitioner on bail by suspending the sentence shall not cause

any inconvenience or prejudice to the prosecution. Further, the

petitioner's parents are old aged and needs the assistance of the

petitioner and his presence is highly necessary.

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |4

6. The learned counsel next submitted that the appeal

would not be taken up for hearing in the near future and therefore,

the petitioner is entitled to suspension of sentence pending appeal

and that the petitioner undertakes to abide by the conditions

imposed by this Court.

7. The learned counsel for the petitioner urged that

detention of the petitioner during pendency of the appeal is a

severe punishment to all his family members and, thus, prayed for

suspension of sentence pending appeal. In support, the learned

counsel placed reliance upon the judgment of the Delhi High Court

in the case of Pankaj Kumar Bhola v. Govt. of NCT of Delhi, 2023

Legal Eagle (DEL) 91.

8. Per contra, Mr. H. Samarjit, the learned Additional

Public Prosecutor submitted that the learned Special Judge after

examination of both sides and taking into consideration the

material evidence came to the conclusion that the prosecution has

forced beyond reasonable doubt that the petitioner had committed

penetrative sexual assault to the victim girl and that the accused

has failed to prove even by preponderance of probability that he

did not commit penetrative sexual assault and his plea of alibi.

9. The learned Additional Public Prosecutor further

submitted that the petitioner resides near the victim in the same

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |5

locality and, if he is released on bail at this stage, the life and

safety of the victim cannot be assured. The objective of the

POCSO Act is to protect the innocent young children. Thus, a

prayer has been made to reject the petition for suspension of

sentence in the interest of justice and that the interest of the victim

whose life has been scarred and damaged beyond redemption as

the stigma of being a victim of sexual assault will remain for the

remainder of her life.

10. This Court considered the rival submissions and also

perused the materials available on record.

11. The petitioner was convicted under Section 6 of

POCSO Act. Upon hearing the petitioner, the learned Special

Judge sentenced the petitioner to suffer rigorous imprisonment for

a period of 12 years and to pay a sum of Rs.10,000/- as fine and

in default of payment of fine, the convict shall undergo simple

imprisonment for a period of 3 months. The learned Special Judge

also recommended Rs.5 lakh as victim compensation in terms of

"Compensation Scheme for Women Victims/Survivors of Sexual

Assault/other Crimes, 2018". The judgment of the trial Court is

dated 26.11.2019 and sentence was imposed on 29.11.2019 and

according to the petitioner, he was in jail since from 10.11.2016

i.e. from the date of arrest.

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |6

12. As could be seen from the grounds of appeal, the

petitioner has challenged the judgment of the learned Special

Judge on various grounds. The petitioner has raised a ground that

the learned Special Judge has failed to appreciate the oral

testimony of the prosecution witnesses in proper perspective and

in view of lot of infirmities and lacuna in the evidence of the

prosecution witnesses, the conviction cannot stand.

13. The petitioner also raised a ground that the

prosecution has failed to establish that the petitioner is capable of

performing sexual act by his examination by a competent doctor.

In the absence of such evidence, convicting the appellant under

the impugned conviction is not called for. The learned Special

Judge failed to take into consideration the evidence of P.W.7-

Doctor in proper perspective, as his evidence is so clear that there

is no sign of any sexual intercourse or assault to the victim.

Further, the statement of the victim when accepted as gospel truth

does not fulfil the basic ingredient of penetrative sexual assault as

defined in Section 3 of the POCSO Act. When the ingredient of

penetrative sexual assault is not fulfilled, convicting the petitioner

under Section 6 of the Act is not called for.

14. It is settled that when a convicted person is

sentenced to a fixed period of sentence and the appellate Court

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |7

finds that due to practical reasons the appeal cannot be disposed

of expeditiously, it can pass appropriate orders for suspension of

sentence.

15. In Pankaj Kumar Bhola, supra, the Delhi High Court

held as under:

"10. Considering the facts and circumstances of the case, as adverted to by the counsel for the appellant where they may have substantial issues to press in their appeal, but since the appeal is pending before this Court and will take time to be heard and adjudicated upon; as also the fact that the appellant has already served more than half of his sentence that too without having taken any interim bail; as also he has no previous conviction and his jail conduct is satisfactory, in view of the directions of the Hon'ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021, as well as Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259 (where the Hon'ble Suprem Corut has observed that in cases other than life sentence cases, the broad parameter of 50 per cent of actual sentence undergone can be the basis of grant of bail), this Court deems it fir to suspend the sentence of the appellant."

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |8

16. The aforesaid decision of the Delhi High Court

squarely applies to the case on hand, as the petitioner is in jail

from 10.11.2016 i.e. from the date of arrest. In other words, the

petitioner is in jail for a period of 6 years 11 months, which is more

than the half of sentence imposed on him.

17. In Bhagwan Rama Shinde Gosai and others v. State

of Gujarat, (1999) 4 SCC 421, the Hon'ble Supreme Court held:

"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) Page |9

court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted."

18. In Union of India v. Ram Samujh and another, (1999)

9 SCC 429, the Hon'ble Apex Court held that the jurisdiction of the

Court to grant bail is circumscribed. The bail can be granted and

sentence suspended in a case where there are reasonable

grounds for believing that the accused is not guilty of the offence

for which he is convicted and he is not likely to commit any offence

while on bail and during the period of suspension of sentence.

19. In the instant case, the petitioner challenged the

judgment of the trial Court on various grounds as could be seen

from the grounds of appeal and prima facie the petitioner has got

arguable case. This Court is not concerned with the merits of the

appeal and the concern is only with regard to the point whether

the petitioner is entitled to suspension of sentence pending

appeal.

20. As stated supra, the Hon'ble Supreme Court in the

case of Bhagwan Rama Shinde Gosai (supra), held that the

prayer for suspension of sentence pending appeal should be

considered liberally unless there is any statutory restriction.

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) P a g e | 10

21. Where an appeal is preferred against the conviction

under Section 6 of the POCSO Act before the High Court, the

High Court has ample power and discretion to suspend the

sentence. However, that discretion has to be exercised judiciously

depending upon the facts and circumstances of each case. While

considering the suspension of sentence, each case has to be

considered on the basis of the nature of the offence, the manner in

which the occurrence had taken place, whether bail granted earlier

had been misused. There is no straitjacket formula which could

be applied in exercising discretion and the facts and

circumstances of each case would govern the exercise of

judicious discretion while considering an application filed by a

convict under Section 389 Cr.P.C.

22. When this Court analysed the instant case in the light

of the settled principles, this Court is of the view that the appeal is

of the year 2020 and due to practical reasons, the appeal cannot

be taken up in the near future and disposed of expeditiously.

According to the petitioner, the petitioner is in jail from 10.11.2016

and the petitioner has spent considerable time in jail.

23. When an appellate Court is in seizin of an application

for suspension of sentence with an assertion that the convict has

served half of the sentence, it can take into consideration his

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) P a g e | 11

criminal antecedents. In the instant case, no criminal record of the

petitioner has been produced by the prosecution. The only plea

of the prosecution is that the petitioner resides near the victim in

the same locality and if he is released on bail, the life of the victim

is danger. Merely because the petitioner is residing in the same

locality of the victim, the claim of bail cannot be rejected on the

ground that the victim is residing in the same locality.

24. As stated supra, the petitioner has spent

considerable time i.e., nearly 6 years 11 months and during that

period no criminal antecedents has been shown by the

prosecution.

25. In the light of the decision of the Hon'ble Supreme

Court in the case of Bhagwan Rama Shinde Gosai (supra), and

the fact remains that the present appeal would take substantial

time to come up for final hearing, without expressing any opinion

on the merits of the appeal, this Court is inclined to suspend the

sentence imposed on the appellant, subject to stringent

conditions.

26. Accordingly, the sentence imposed on the petitioner

in Special Trial (POCSO) Case No.4 of 2017 dated 29.11.2019 on

the file of the learned Special Judge (POCSO), Imphal East alone

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) P a g e | 12

is suspended, subject to the compliance of the following conditions

by the petitioner:

(a) The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.50,000/- (Rupees Fifty Thousand) with two sureties in the like sum to the satisfaction of the learned Special Judge (POCSO), Imphal East.

(b) The petitioner shall provide permanent address to the learned Special Judge (POCSO), Imphal East. The appellant shall intimate the Court by way of an affidavit and to the Investigating Officer regarding any change in residential address.

(c) The petitioner, on his being enlarged on bail, is directed to report before the learned Special Judge (POCSO), Imphal East on the first working day of every month at 10.00 A.M. without fail.

(d) The petitioner is directed to appear before this Court on all hearing dates.

(e) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. He shall not communicate with or come in contact with the victim or any member of the victim's family or tamper with the evidence of the case.

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020) P a g e | 13

(f) The petitioner shall not leave the jurisdiction of the Court and shall ordinarily reside at a place of his residence.

(g) The petitioner shall provide all mobile numbers to the Investigating Officer concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the Investigating Officer concerned. The mobile location be kept on at all times.

(h) In case of violation of any condition, the prosecution may ask for cancellation of bail.

(g) Needless to state, any observation touching the merits of the case is purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on merits of the matter.

27. Accordingly, MC (Crl. Appeal) No.2 of 2020 in

Criminal Appeal No.9 of 2020 is allowed.

JUDGE

FR/NFR

Sushil

MC(Cril.Appeal) No. 2 of 2020(Ref:- Cril. Appeal No. 9 of 2020)