Sunil Mishra @ Arun Mishra vs State Of U.P. And 3 Others on 2 May, 2025

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Allahabad High Court

Sunil Mishra @ Arun Mishra vs State Of U.P. And 3 Others on 2 May, 2025

1. Heard Mr. Deepak Kumar Jaiswal, the learned counsel for appellant, the learned A.G.A. for State/opposite party-1 and Mrs. Gunjan Sharma, the learned counsel representing opposite party-3, High Court Legal Service Committee, High Court, Allahabad.

2. Present appeal came up for admission on 30.07.2024, Court issued notice to first informant/opposite party-2. Thereafter again vide order dated 16.10.2024 notices were issued to opposite parties 2 and 4.

3. Office has submitted a report dated 10.12.2024 stating therein that notice issued to opposite party 2 has been served personally whereas notice issued to opposite party-4 has been served through office.

4. However, in spite of service of notice upon opposite parties 2 and 4, no one has put in appearance on their behalf to oppose this appeal even in revised call.

5. Vide order dated 03.03.2025 the appeal was admitted and the trial court record was summoned.

6. Another report dated 21.04.2025 has been submitted by the Office stating therein that the trial court record has been received.

7. List this appeal for hearing in due course.

Ref: Order on application for suspension of sentence

1. Heard Mr. Deepak Kumar Jaiswal, the learned counsel for applicant/appellant, the learned A.G.A. for State/opposite party-1 and Ms. Gunjan Sharma, the learned counsel representing High Court Legal Service Committee, High Court, Allahabad.

2. Perused the record.

3. Present criminal appeal came up for admission on 03.03.2025 and this Court passed the following order:

" (Ref:-Order on the Memo of Appeal)-

1. Heard Mr. Deepak Kumar Jaiswal, the learned counsel for appellant and the learned A.G.A. for State. Though the name of Mrs. Gunjan Sharma is duly published in the cause list.

2. Perused the record.

3. Admit.

4. Summon the lower Court record.

5. Office has submitted a report dated 28.02.2025 stating therein that the trial Court record is awaited.

6. In view of above, office is directed to expedite the summoning of trial Court record.

(Ref:-Order on the Application for Suspension of Sentence)-

1. Heard Mr. Deepak Kumar Jaiswal, the learned counsel for applicant-appellant and the learned A.G.A. for State.

2. Perused the record.

3. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A.

4. Notice issued to opposite party-2 in terms of order dated 16.10.2024 is said to have been served upon opposite party-2 personally, as per office report dated 10.12.2024.

5. Inspite of service of notice, neither any counter affidavit has been filed by first informant opposite party-2 nor anyone has put in appearance on his behalf to oppose this application for suspension of sentence even in revised call.

6. By means of the impugned judgment and order, applicant-appellant has been convicted and sentenced for a maximum period of 13 years.

7. In view of above and also the provisions existing in proviso to Section 389(1) Cr.P.C., the learned A.G.A. for State-opposite party-1 shall file his objections/counter affidavit to the application for suspension of sentence within 4 weeks.

8. Applicant-appellant will have 2 weeks thereafter to file his rejoinder affidavit.

9. Matter shall re-appear for orders as fresh on 22.04.2025.

10. By the next date, the learned counsel for applicant-appellant shall file a list of dates, brief synopsis containing the details of prosecution evidence (oral and documentary), material exhibits, defence evidence, points raised before Court below and the findings returned by Court below.

Order Date :- 3.3.2025 "

4. Subsequent to above order dated 03.03.2025, the learned A.G.A. has filed his objections/counter affidavit to the application for suspension of sentence. The same is on record.

5. Learned counsel for applicant/appellant submits that he does not wish to file any rejoinder affidavit to the same.

6. In view of above, the Court has proceeded to consider the application for suspension of sentence/bail filed by applicant/appellant.

7. Instant criminal appeal has been filed by applicant/appellant, challenging the judgement and order dated 28.2.2024, passed by Special Judge (POCSO) Act/Additional District and Sessions Judge, Chitrakoot in Special Sessions Trial No. 398 of 2023 (State Vs. Sunil Kumar Mishra @ Arun Mishra) arising out of Case Crime No. 150 of 2023, under sections 376(3), 506, IPC, Section 4(2) POCSO Act, 2012, Police Station- Mau, Ditrict Chitrakoot.

8. By means of the impugned judgement and order, applicant/appellant has been convicted under section 4 (2) of the POCSO Act and consequently, sentenced to twenty years rigorous imprisonment along with fine of Rs. 10,000 and in case of default in payment of fine, applicant/appellant is to undergo three months of additional incarceration, under section 506 IPC and therefore, sentenced to one year imprisonment. The impugned judgement and order further records that both the sentences shall run concurrently.

9. Learned counsel for applicant/appellant submits that applicant/appellant was not enlarged on bail during the pendency of trial. As such applicant/appellant is under incarceration since he was arrested. Accordingly, applicant/appellant has filed aforementioned application for suspension of sentence/enlargement on bail during the pendency of present criminal appeal.

10. According to the learned counsel for applicant/appellant, though applicant/appellant is a convicted accused and undergoing incarceration, yet he is liable to be enlarged on bail.

11. In furtherance of aforesaid submission, it is urged by the learned counsel for applicant/appellant that applicant/appellant has been convicted and sentenced under Section 4 (2) of POCSO Act. In view of aforementioned, conviction and sentence awarded by court below, a finding was compulsorily required to be recorded by court below qua the age of the prosecutrix.

12. He has then invited the attention of Court to the impugned judgement and order and has referred to paragraph 21 of the impugned judgement wherein, court below has discussed the evidence on record on the basis of which, it has returned a finding that the prosecutrix/victim/child was aged about 15 years on the date of occurrence .

13. In the submission of the learned counsel for applicant/appellant, the finding so returned by court below is not only illegal, perverse but also erroneous. According to the learned counsel for applicant/appellant, the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the provisions of POCSO Act. Referring to the judgement of Supreme Court in Jarnail Singh Vs. State of Haryana, (2003) 7SCC 263, the learned counsel for applicant/appellant submits that it has now been held by the Apex Court that the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the procedure provided in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Since the Juvenile Justice (Care and Protection of Children) Act, 2000 has already been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act of 2015), therefore, by necessary implication, the age of the prosecutrix/victim/child under the POCSO Act (on the date of occurrence) can be determined only with reference to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The judgement rendered in the case of Jarnail Singh (Supra) has been reaffirmed/followed in the subsequent judgements of Supreme Court in (i) Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another, (2013) 14 SCC 637 (ii) State of Madhya Pradesh Vs. Anoop Singh (2015) 7 SCC 773.

14. He has then referred to Section 94 of the Act of 2015, which reads as under:

"Section 94 - Presumption and determination of age-

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining?

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

15. Drawing a parallel in between the provisions of Section 94 of the Act, 2015 and the evidence relied upon by court below, to determine the age of prosecutrix/victim/child on the date of occurrence as is manifest from the recital occurring in paragraph 21 of the impugned judgement, the learned counsel for applicant/appellant submits that court below has relied upon such evidence, which is otherwise not admissible or reliable for determining the age of the prosecutrix/victim/child under the POCSO Act. He therefore contends that since the age of prosecutix/victim/child on the date of occurrence has been determined by court below not as per the mandate of Section 94 of the Act, 2015, therefore, the finding so returned by court below is manifestly illegal.

16. It is further submitted by the learned counsel for applicant/appellant that the provisions contained in Section 94 of the Act, 2015 operate in a preferential manner. Meaning thereby that the court shall first endeavour to decide the age of the prosecutrix/victim/child with reference to the documents mentioned in Section 94 (2) (i) of the Act, 2015. Only in case no document as mentioned in Section 94 (2) (i) is available then only court can take recourse to Section 94 (2) (ii) of the Act, 2015. However, in case no document as mentioned in Section 94 (2) (ii) of Act, 2015 is available then as a last resort, court can get the age of the prosecutrix/victim/child determined mandatority as per the mandate of Section 94 (2) (iii) of the Act of 2015.

17. Learned counsel for applicant has then referred to the judgement of Supreme Court in P. Yuvaprakash Vs. State of M.P., 2023 SCC Online SC 846, wherein Apex Court has considered the true import of the provisions contained in Section 94 of the Act, 2015. Court upon a holistic view of the provisions contained in Section 94 of the Act, 2015 ultimately denuded that as per the framework of Section 94 of the Act, 2015 only three categories of documents are recognized therein for determining the age of the prosecutrix/victim/child. Since in the present case, the age of the prosecutrix/victim/child under the POCSO Act has not been determined with reference to the said documents but otherwise, therefore, it is urged by the learned counsel for applicant/appellant that the finding returned by court below qua the age of prosecutrix/victim/child is not only illegal, perverse but also erroneous. At this juncture, it would be appropriate to reproduce the relevant observations made by Court itself in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report. Accordingly, paragraphs 11, 12, 13, 14 and 19 of the aforesaid report are reproduced herein below :-

"11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:

34. Procedure in case of commission of offence by child and determination of age by Special Court. ? (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.

12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

94. Presumption and determination of age. ? (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through ?an ossification test? or ?any other latest medical age determination test? conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

19. It is clear from the above narrative that none of the documents produced during the trial answered the description of ?the date of birth certificate from the school? or ?the matriculation or equivalent certificate? from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim?s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating ?that the age of the said girl would be more than 18 years and less than 20 years?. In the cross-examination, she admitted that M?s age could be taken as 19 years. However, the High Court rejected this evidence, saying that ?when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor?. This finding is, in this court?s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim?s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."

18. On the strength of aforesaid submissions, the learned counsel for applicant/appellant submits that since the conviction and sentence of the applicant/appellant under Section 4 (2) of POCSO Act cannot be sustained, therefore, the appeal is prima facie liable to be allowed. It is thus urged by the learned counsel for applicant/appellant that in view of the law laid down by Apex Court in the case of Omprakash Sahni vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123, wherein it has been held that a convicted accused can be enlarged on bail only after a finding is recorded by an appellate court that prima-facie the appeal is liable to be allowed then a convicted accused can be enlarged on bail. As such, applicant/appellant, who is under incarceration, is liable to be enlarged on bail during the pendency of present appeal.

19. Even otherwise, applicant/appellant is a man clean antecedents inasmuch as, he has no criminal history to his credit, except the present one. As per custody certificate of the applicant/appellant, he has undergone more than 1 year, 7 months and 16 days of incarceration on the date of issuance of said certificate. In view of heavy pendency of appeals and acute shortage of Judges before this Court, there is no likelihood of the present appeal being heard in near future. It is thus urged by the learned counsel for applicant/appellant that applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. In case, applicant/appellant is enlarged on bail during the pendency of present appeal, he shall not misuse the liberty of bail and shall cooperate in the hearing of this appeal.

20. Per contra, the learned A.G.A. representing State-opposite party-1 and Mrs. Gunjan Sharma, the learned counsel representing opposite party-3, High Court Legal Service Committee, High Court, Allahabad have vehemently opposed the prayer for bail. They submit that since applicant/appellant is a convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. and the learned counsel representing opposite party-3, interest of justice shall better be served, in case, the appeal itself is heard on merits by fixing a short date rather than enlarging the applicant/appellant on bail. The victim is a small and innocent girl, who was much below 18 years of age on the date of occurrence. Accused/applicant/appellant is guilty of dislodging her modesty. As such, offence complained of against applicant/appellant is highly unnatural and immoral. In fact it amounts to a crime against society. As such, no sympathy be shown by this Court in favour of applicant/appellant. It is further contended by them that applicant/appellant has been convicted under Section 4 (2) of the POCSO Act which means that applicant/appellant is guilty of committing deliberate penetrative sexual assault upon the victim. As such, no good ground is made out to enlarge the applicant/appellant on bail during the pendency of present appeal. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the prayer for bail, with reference to the record at this stage.

21. Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State-opposite party-1, Mrs. Gunjan Sharma, the learned counsel representing opposite party-3, High Court Legal Service Committee, High Court, Allahabad, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made, this court finds that applicant/appellant has been convicted and sentenced by court below for a maximum period of 20 years rigorous imprisonment, the applicant/appellant is under incarceration since the date of his arrest i.e. 15.06.2023, however, conviction and sentenced awarded by court below against applicant/appellant is under Section 4 (2) of POCSO Act, in view of above, the court below was mandatorily required to determine the age of the prosecutrix/victim/child on the date of occurrence, Court below has returned a finding that the prosecutrix/victim/child was aged about 15 years on the date of occurrence, the said finding has been recorded by court below on the basis of recital occurring in paragraph 21 of the impugned judgement and order, court below in order to determine the age of the prosecutrix has relied upon the oral deposition of P.W.-7 i.e Head Master of the School where the prosecutrix/victim/child had studied, Ext. Ka 4-School Register and Ext. Ka-5-School Leaving Certificate wherein the date of birth of the prosecutrix is recorded as 13.06.2008, in view of the law laid down by Apex Court in Jarnail Singh (Supra) the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the provisions contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, since the Juvenile Justice (Care and Protection of Children) Act 2000 has now been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015, therefore, by necessary implication, the age of the prosecutrix/victim/child could be determined under the POCSO Act as per the mandate of Section 94 of the Act of 2015, when a parallel is drawn in between the provisions contained in Section 94 of the Act, 2015 and the evidence relied upon by court below to determine the age of the prosecutrix, this Court finds that court below has determined the age of the prosecutrix in derogation of the mandatory provisions of Section 94 of the Act, 2015, in view of above, the findings returned by court below qua the age of the prosecutrix/victim/child on the date of occurrence is not only illegal, perverse but also erroneous, as such the conviction and sentence awarded by court below is liable to be set aside, in view of the law laid down by the Apex Court in the case of Omprakash Sahni (Supra) that an accused shall be enlarged on bail by the High Court only after recording the finding that prima facie the appeal is liable to be allowed, the applicant/appellant has made out a case for grant of bail/suspension of sentence, therefore irrespective of the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence/ prayer for grant of bail, applicant/appellant has made out a case for bail.

20. Accordingly, the application for suspension of sentence/grant of bail to applicant/appellant during pendency of present criminal appeal, is liable to be allowed.

21. It is, accordingly, allowed.

22. Let the applicant/appellant-Sunil Mishra @ Arun Mishra involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned.

23. It is however provided that applicant/appellant shall deposit the amount of fine awarded by court below with the court below within a period of one month from today. In case of default, the bail granted to applicant/appellant under this order shall stand automatically cancelled and he shall be taken into custody forthwith to serve out the sentence awarded by court below.

Order Date :- 2.5.2025 YK

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