Durga Krishan Bhat vs Ut Of J And K on 25 April, 2022

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Jammu & Kashmir High Court

Durga Krishan Bhat vs Ut Of J And K on 25 April, 2022

1. The instant criminal appeal under Section 410 of Criminal Procedure Code is directed against judgment of conviction and order of sentence dated 29.12.2021 passed by the Court of learned Special Judge Fast Track Court, POCSO Cases, Jammu in file No. 21/Sessions titled "State v/s Durga Krishan Bhat" where under appellant/convict has been found guilty of committing offence under sections 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018 and sentenced to simple imprisonment of seven (07) years and also fine in the sum of Rs. 10,000.

2. Feeling aggrieved of the impugned judgment of conviction, the appellant has assailed it's correctness, propriety and legality on the grounds that as a result of misappreciation of facts and misapplication of law so far as the finding of the trial court relating to holding appellant guilty of having committing of offence under Section 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018 and convicting him of the same is bad in the eyes of law; that the trial court has held that neither offence under Section 376 AB RPC nor offence under Section 6 of the Protection of Children from Sexual Violence Ordinance 2018 have been proved against appellant/accused by prosecution but the trial court suddenly from nowhere held in Para 34 of the judgment that appellant is held guilty 2 Crl A(S) 01/2022 "under sections 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018;" the charges were framed on 22.10.2018 under section 376 AB RPC and 6&8 of POCSO Ordinance and the conviction has been rendered under Sections 7 & 9 of the POCSO Ordinance; the prosecution has examined only four witnesses and no other independent witness has been examined in the present case; the eye witness namely, Hari Krishan Pandita @Nana Ji was alleged by the prosecutrix as well as father of the prosecutrix of being present at the spot during the occurrence; the said witness was given up by the prosecution and later on tendered as defence witness by the appellant; the said witness has negated the prosecution version and no effective cross examination was subjected to the defence witness and this aspect and the necessary implication arising has not been appreciated by the learned trial Court; the over view of the prosecution case is that even before recording the statement of the prosecutrix by the police and by the concerned Magistrate under section 164 Cr.P.C, the appellant was arrested and beaten up mercilessly by the police; this aspect was stated by the prosecutrix herself in her statement recorded u/s 164-A Cr.P.C; that the veracity of the prosecution case is quite doubtful and the police has acted hand in glove with the father of the prosecutrix; that I.O of thecase has himself admitted that the investigation was being done by one woman police officer and the said I.O who is also the SHO of P/S has also admitted that he did not examined even a single witness who were present on the spot at the time of commission of alleged offence; that the I.O has also not seized the clothes of the alleged prosecutrix, the material evidence has not been collected in this case and even the age of the prosecutrix has not been proved by any cogent evidence; that the age of the prosecutrix was required to be proved keeping the same standard which is required to be proved under the Juvenile Justice Act; that the manner of the alleged occurrence has been deposed differently by all the three prosecution witnesses; that the learned trial court has failed to note that prosecutrix is not a witness of such a kind whose testimony can be accepted at its face value without any hesitation nor has the contentions of the appellant been appreciated anywhere in the judgment impugned.

3 Crl A(S) 01/2022

3. Along with the appeal, appellant/convict has filed an application under Section 426/389 Cr.P.C for suspension of conviction and sentence pending the hearing of appeal with further prayer for ordering his release on bail.

4. Sh. Anmol Sharma, learned counsel for appellant/convict to support the case of appellant/convict for suspension of his sentence of conviction and his released on bail, has strenuously argued, that the prayer for suspension of sentence of conviction and ordering of the appellant/convict on bail should be considered liberally unless there is any statutory restriction. It is argued, that when the sentence is of life imprisonment, the consideration for suspension of sentence should be of different approach, and when the appellate court finds that due to practical reasons, the appeal could not be disposed of expeditiously, the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective, but if for any reason the sentence of limited duration cannot be suspended, every endeavor should be made to dispose of the appeal on merits. It is further argued, that by the judgment and order of this court passed in ―Vajida Bano and ors v/s State in CrlA (S) No. 05/2019, CrlM No. 853/2019" it is manifest, that even the sentence of ten (10) years rigorous imprisonment was suspended against the accused persons who were found guilty for commission of offences u/ss 364/120- B/201 RPC. It is vehemently argued, that in the case in hand, appellant/convict has only been sentenced for commission of offence u/s 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018 up to simple imprisonment of seven (07) years which is a fit case for suspension of sentence and for his release on bail. To support his arguments, Ld. counsel has relied upon the judgments reported in, (i) (1999) 4 Supreme court Cases 421 (Bhagwan Rama Shinde Gosai and others--Appellants versus State of Gujarat--Respondents) & (ii) judgment/order of J&K High Court rendered in CrlA (S) No. 05/2019 CrlM No. 853/2019 (Vajida Bano and Ors v/s State).

5. Sh. Amit Gupta, learned AAG Per Contra, have strenuously articulated arguments, that the learned trial court has rightly convicted the accused as he has committed a very heinous offence punishable under sections 7 & 9 4 Crl A(S) 01/2022 of the Protection of Children from Sexual Violence Ordinance 2018. It is argued, that the victim/prosecutrix was just 7 years old at the time of occurrence in the year 2018; that the entire life, honor, character, reputation, dignity, body and soul of prosecutrix has been ravished and plundered by the appellant/convict, even the discrepancy is in the statement of prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out and otherwise reliable in prosecution case, rape is not merely a physical assault but it is often destructive of the whole personality of the victim, a murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female, the courts, therefore, shoulder a great responsibility while trying an accused on charges of rape, and it is the bounding duty of the courts to deal with such cases with utmost sensitivity, the courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies and if the evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars, the testimonies of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations, and prayer for rejection of suspension of sentence and grant of bail has been made. To buttress their arguments, Ld. Counsel have relied upon the rulings reported in (i) 2004 Supp (3) SCR 132 (State of Haryana v/s Hasmat); (ii) (Bholu v/s State of U.P, Crl. Misc. Application No. 124973 of 2017) & (iii) (Mahesh Pahade v/s The state of Madhya Pradesh, Crl. Appeal No. 933/2014 order on IA No. 6367/2017).

6. Heard & considered. Section 389 of Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For the sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-

389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

5 Crl A(S) 01/2022 [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub-Section(1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Cursory glance of Section 389 Cr.PC makes the legal proposition abundantly clear, that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.

6 Crl A(S) 01/2022 In the case of BHAGWAN RAMA SHINDE GOSAI AND OTHERS Versus STATE OF GUJARAT [(1999) 4 Supreme Court Cases 421], relied by Ld. Counsel for convict/accused, Hon'ble Supreme Court while discussing the power and scope of section 389 Cr.PC regarding suspension of sentence pending the appeal filed by the convict, and while holding that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction, and while suspending the sentence and directing appellant/accused/convict to be released on bail found guilty for commission of offences u/ss 392 r/w 397 IPC for rigorous imprisonment of 10 years by the trail court, in paras 3&4 of the judgment held as under:-

3. When a convicted person is sentenced to fixed period of sentence and when he files appeals 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 limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing 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 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.

4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00p.m. and 6.00 p.m. until disposal of the appeal pending before the High Court.

Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC does not contain any "statutory restriction" in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence.

7 Crl A(S) 01/2022 Similarly, in the case of Vajida Bano and Ors--Petitioner(S) V/s State Through Advocate General--Respondent(S) [His Lordships, Hon‟ble Mr. Justice Ali Mohd Magrey of J&K High Court] while relying upon the judgment of BHAGWAN RAMA SHINDE GOSAI‟S (Supra) suspended the sentence of appellant/convicts, convicted and sentenced in FIR 09/2014 for commission of offences u/ss 363/317/ 302/ 120-B & 201 RPC of P/S Kargil.

In the case of State of Haryana Vs Hasmat (decided by Hon‟ble Supreme Court of India on 26th July 2004 in Appeal Crl. 715-717 of 2004), relied by Ld. Counsel for respondent/victim, Hon‟ble Supreme Court set aside the order of Punjab & Haryana High Court regarding the suspension of sentence and enlargement of accused/convict on bail convicted for commission of offences u/ss 148/302/307/324 r/w Sec. 149 of IPC r/w 25/27 Arms Act on the ground of seriousness of offence wherein the relevant facts like the "nature of acquisition" the manner in which crime was committed "the gravity of offence" and the desirability of releasing the accused on bail after they were convicted for committing serious offence of murder, and the said aspects were not considered by the High Court which passing the impugned order of suspension/bail.

In the case of Bholu Vs State of U.P. (Crl. Misc. Application No. 124973 of 2017) decided by Allahabad High Court on 04-05-2018 relied by Ld. Counsel for respondent/victim, Hon‟ble Allahabad High Court rejected the 1st and 2nd bail applications of accused/appellant/convict even though he was in jail for 9 years on the ground that the appellant/convict was convicted for heinous offence of 2 murders.

In another case relied by Ld. Counsel for victim/prosecutrix titled Mahesh Pahade -Appellant Versus State of Madhya Pradesh-- Respondent) [Criminal Appeal No. 933/2014 decided on 18th July 2018] the Division Bench of Madhya Pradesh High Court relaying upon the plethora of decisions of Hon‟ble Supreme Court viz; 1. (2018) 3 SCC 187 (Lachhman Dass vs. Resham Chand Kaler and Another); 2. (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others); 3. (2009) 6 8 Crl A(S) 01/2022 SCC 767 (National Human Rights Commission vs. State of Gujarat and others);4. (2006) 3 SCC 374 (Zahira Habibullah Sheikh and another vs. State of Gujarat and others); 5. (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.); 6. (2000) 2 SCC 391 (R. Rathinam vs. State by DSP); 7. (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and another);

8. (1979) 4 SCC 719 (Rattan Singh vs. State of Punjab), held, that the victims of heinous crime cannot be denied the right to address their grievances before the court of law. In the decision (Supra) Hon‟ble Madhya Pradesh High Court held, that Section 372 of Code of Criminal Procedure gives right to victim to file an appeal against order of conviction which clearly gives right to the prosecutrix a victim of heinous crime on her person to approach the court for cancellation of bail. The case laws relied upon by Ld. Counsel for respondent/victim only lay down an invariable principle of law that in cases punished with imprisonment of less than ten (10) years even no notice is required to be given to the State/Public Prosecutor, however, in heinous offences like that of murders u/s 302 IPC, the court has the power/jurisdiction to grant or refuse the suspension of sentence and bail. In the case in hand, appellant/convict has been found guilty by the trial court of Special Judge Fast Track Court, POCSO Cases, Jammu for commission of offence under Sections 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018 and sentenced to simple imprisonment of seven (07) years and also fine in the sum of Rs. 10,000/-. Vide ratio of the judgment of ―Bhagwan Ram Shinde Gosai's and others case‖ (1999) 4 Supreme Court Cases 421 (Supra), relied by Ld. Counsel for appellant/convict, there is no statutory restriction/prohibition in not considering the application for suspension and releasing of appellant/convict on bail. Appellant/convict is a resident of Lane No.24, Block 153 Qrt. No. 14 Jagti Colony, Jagrota, Nagrota has deep roots in the society, and therefore, does not possess the golden wings to flee from justice, as nothing substantial has been brought before the notice of this court that appellant/convict has absconded during trial. The seriousness or gravity of offence is to be seen in cases where accused/convict is punished with death penalty, life imprisonment or imprisonment of 10 years and above, wherein, while considering the 9 Crl A(S) 01/2022 application for suspension and bail the judicial description lies in the wisdom of the court. Right to life and liberty of an individual is precious under Article 21 of the Constitution of India and is also a very valuable right of accused/convict which also continues during the appeal period as appeal is the continuation of the trial. No doubt the dignity, honor and respect of victim/prosecutrix of crime is of paramount importance, but the quantum of punishment inflicted upon the convict has to be taken in consideration while deciding the application for suspension of sentence and bail. As the appellant/convict is handed down punishment of only seven (07) years for commission of offence under sections 7 & 9 of the Protection of Children from Sexual Violence Ordinance 2018, as a sequel to the aforesaid discussion, I am of the considered opinion, that appellant/convict has made out a strong case for suspension of sentence and grant of bail in his favour. I, therefore, suspend the sentence inflicted upon the appellant/convict and direct him to be released on bail by executing surety bond in the sum of Rs. 50000/- to the satisfaction of Registrar Judicial of this court with the direction to furnish personal recognizance of like amount before Superintendent Central Jail, Kot Bhalwal, Jammu where the appellant/convict is presently serving the sentence term in judicial lockup. It is further ordered, that the appellant/convict shall appear before this court on each and every date of hearing except for the reasons beyond his control.

7. Appeal Crl A(S) 01/2022 is taken on board.

8. Admit.

9. Call for original record from the trial court.

10. For arguments, list after on 31.05.2022.

(Mohan Lal) Judge Jammu:

25.04.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

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