Allahabad High Court
Rajendra @ Raju vs State Of U.P. on 26 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 08.04.2026 Delivered on: 26.05.2026
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
JAIL APPEAL No. - 141 of 2021
Rajendra @ Raju
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Amit Kumar Tripathi, Atul Kumar Shahi, Faizan Siddiqui, From Jail, Laxmi Paswan, Mohammad Haadi Zaidi, Vikas Tripathi, Zia Naz Zaidi
Counsel for Respondent(s)
:
A.G.A.
Court No. - 45
HON'BLE CHANDRA DHARI SINGH, J.
HON'BLE LAKSHMI KANT SHUKLA, J.
(Criminal Misc. Bail Application No.6 of 2024)
1. The instant jail appeal filed by the appellant/applicant against the judgment dated 05.02.2021 and order dated 06.02.2021 passed by the learned Special Judge (POCSO Act, Exclusive Court)/A.D.J. Court No.27, Agra in S.S.T. No.166/2015, arising out of Case Crime No. 324/2015 whereby the learned Judge convicted and sentenced the appellant to life imprisonment and a fine of Rs.100,000/- under Section 376(2)(i) IPC. He was further convicted and sentenced to life imprisonment and a fine of Rs.75,000/- under Section 3/4 of POCSO Act, 2012 and five years imprisonment under Section 506 IPC with default stipulation. However, all the sentences of the appellant were directed to run concurrently.
2. Learned counsel appearing on behalf of applicant/appellant submitted that the first information report dated 10.06.2015 was lodged against the applicant/appellant by the informant only to falsely implicate him in the said criminal case. All the averments made by the informant in the said F.I.R. were cooked up and based on fabricated and incorrect facts. It is further submitted that as per the version of F.I.R. that on 15.03.2015 the informant went to her sister's house at Kalindi Vihar, Agra to look after her ailing sister. The husband of the informant was present in the house along with her minor daughter aged about 12 years. The first information report further recounts that in absence of the informant her minor daughter was raped by her husband i.e. father of victim continuously for ten days. When the informant came back to her house, the victim told the informant about the occurrence of rape. It is also stated that the applicant/appellant has threatened the victim of dire consequences if she discloses the said fact to anyone. It is also stated in the F.I.R. that prior to the present occurrence, the applicant/appellant had also committed rape on the minor daughter of her sister, but due to fear of social stigma no F.I.R. was lodged by the sister of the informant in respect of the said occurrence. The first information report further mentions that due to shock, the daughter of informant's sister died.
3. Learned counsel appearing on behalf of applicant/appellant submitted that the entire story narrated in the F.I.R. was incorrect and no such incident took place. It is further submitted that being a father of the victim, he could not commit such an act with his daughter as alleged by the the informant in the F.I.R. The entire story of the prosecution is based upon the false and fabricated facts due to the disputes between the informant and applicant regarding some property. It is further submitted that the F.I.R. was lodged after 3 months of the alleged incident without any explanation of delay in lodging the F.I.R. Learned counsel for the applicant submitted that the victim was medically examined and no external or internal injury was found on the body of the victim. It is further submitted that the informant has threatened the applicant/appellant to implicate him falsely in very serious case. It is also vehemently submitted that the informant wanted to take all the movable and immovable properties of her husband i.e. applicant/appellant and when he did not agree and objected to the same, then the present case was instituted against him. It is also submitted that as per custody certificate dated 19.09.2022 issued by the Senior Superintendent, Central Jail, Agra, the applicant has been languishing in jail since 11.06.2015, i.e. about 11 years. It is also submitted that applicant is a man of clean antecedent and there is no previous criminal history against him. It is further submitted that the trial court has convicted and sentenced the applicant/appellant without proper appreciation of the material and evidences on record. It is further submitted that as per the evidence on record the applicant/appellant has very good case on merit and there is a fair chance of success in appeal. It is also submitted that the instant appeal is pending since 2021 and there are no scope for hearing of the instant appeal due to heavy pendency of the criminal cases in this Court. Learned counsel for the applicant/appellant submitted that the applicant may be released on the bail on the the following grounds:-
(i) He has been falsely implicated in the said case.
(ii) He is a man of clean antecedent.
(iii) The applicant/appellant has very good case on merit as there is a fair chance of success in appeal.
(iv) He is already undergone about 11 years. There are no scope of hearing of the appeal finally due to the heavy pendency of criminal appeals in this Court.
4. Learned counsel appearing on behalf of the applicant/appellant submitted that in view of above-said facts and circumstances of the case the instant bail application may be allowed and the applicant may be released on bail.
5. Per contra, learned Additional Government Advocate appearing on behalf of the State vehemently opposed the instant bail application and submitted that the applicant has been convicted under Section 376(2)(i), 506 I.P.C. and Section 3/4 POCSO Act. It is further submitted that the applicant/appellant has committed a very serious offence by committing rape upon his own minor daughter for 10 days. It is also submitted that PW-1, the informant has categorically stated that applicant/appellant had also raped the minor daughter of informant's sister, who died of shock. Learned Additional Government Advocate for the State also submitted that the victim was being raped by her own father repeatedly and the said facts have been duly corroborated by the ocular evidences as well as the documentary evidences. After perusal of the testimony of PW-1, PW-2, PW-3 coupled with medical reports as well as other evidences, case against the appellant/applicant for committing the rape upon his own minor daughter is proved. The nature of offence is very much serious and also as per the statement of PW-1, the informant, the appellant/applicant is habitual and in addition to the present case, he had also committed the rape upon the minor daughter of informant's sister. Learned AGA further submitted that the trial court record has already been received, paper book is ready and the appeal is ripe for hearing. Therefore, he prayed that the appeal may be listed for final hearing by rejecting the instant bail application.
6. Heard Ms. Zia Naz Zaidi, learned counsel appearing on behalf of the applicant/appellant, Mr. S.K. Ojha, learned A.G.A. appearing on behalf of the State and perused the material on record.
7. The applicant has been convicted by the Additional District and Sessions Judge/Special Judge (POCSO Act), Court No. 27, Agra to life imprisonment and a fine of Rs.100,000/- under Section 376(2)(i) IPC. He was further convicted and sentenced to life imprisonment and a fine of Rs.75,000/- under Section 3/4 of POCSO Act, 2012 and five years imprisonment under Section 506 IPC with default stipulation.
8. We have perused the F.I.R. and as per the versions of the F.I.R, the informant was told by the victim (who is the daughter of the informant and the appellant) that she was subjected to rape by the appellant/applicant continuously for ten days. During trial, the informant was examined as PW-1 and as per her testimony, when the victim was raped by applicant, she was not at home and she had gone to her sister's house at Kalindi Vihar, district Agra to look after her ailing sister and when she came back, she found her daughter in shock. On query being made, victim revealed the fact that she was raped by the applicant for ten days repeatedly.
9. P.W.-2, the victim has categorically supported the version of F.I.R. and the statement of P.W.-1. There is no contradiction in the statement of PW-1 and PW-2. The relevant portion of the evidence of PW-2 is reproduced herein under:
"???? ??? 15/3/15 ?? ???? ?? ?? ???????? ????? ???? ??? ??? ???? ?? ???? ?? ?????? ??? ??? ?? ?? ???, ????? ???? ???? ?? ????? ?? ???? ??? ??? ????? ?? ??? ?? ?? ???? ???? ???? ???? ??? ??? ???? ???? ?? ?? ???? ???????? ????? ?????? ?? ?? ??? ????? ???? ?? ??? ??? ?? ???? ??? ?? ???? ????? ?????? ??? ?? ??? ???? ??? ???? ??? ????? ???? ???? ?? ?????? ???? ??? ???? ??? ?? ????? ?? ???? ??? ????? ?? ??? ?? ??? ???? ?? ????? ??? ???? ?? ??? ?? ?? ??? ?? ???? ?? ???? ???? ??? ???? ??? ???? ?? ??, ?? ??? ????? ????? (????) ?? ?? ???? ??? ????? ?? ??? ????? ???? ??? ????? ???? ?? ?????? ???? ?? ??? ??? ??? ????? ?? ???? ?? ??? ????? ??? ????? ??? ??? ???? ?? ???? ??? ??? ??? ???? ??? ??????? ??????? ???"
10. P.W.-3 Dr. Shaili Singh, who examined the victim, stated in her testimony as follows:-
"???? ??? ??? ???? ??? ??? ???????? ???? ?? ??????? ?? ????? ???? ???? ?? ???? ?? ..............? ????? ?? ????? ?????? ??? ??? ??? ??? ??? ??? ??? ???? ??? ??? ????? ???? ?? ??? ?? ?????? ??? ?? ???? ??, ??? ??? ????? ????????? ??????? ???? ?? ???? ???? ???? ???? ?? ???"
11. After perusal of other evidences and testimony, this fact brought also emerged that prior to the incident in question, the appellant/applicant had also raped the daughter of informant's, but no report was lodged against the applicant for the said incident. It is also brought into the notice that due to shock the daughter of informant's sister died. The instant application has been filed for suspension of sentence of the applicant under Section 389(1) of Cr.P.C. Section 389 (1) and Section 39 of Cr.P.C. are quoted as below:-
"Section 389 (1) of Cr.P.C. 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."
"Section 39 of Cr.P.C. mandates that the public, aware of the commission or intention of specific offences (e.g., against the state, public tranquility, or serious bodily harm), must inform the nearest magistrate or police officer. Failure to do so without reasonable excuse is punishable."
12. The adjudication of application for suspension of sentence in criminal appeals involving aggravated penetrative sexual assaults under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act, 2012") presents the profound challenge to the judicial conscience, particularly, when the accused occupies a position of biological trust, such as father.
13. The core of the legal issue lies in the tension between the legislative mandate for stringent deterrence and the constitutional requirement for fair sentencing and release on bail during the pendency of an appeal.
14. In the present matter, the appellant/applicant has been convicted under Section 3/4 POCSO Act (as it is prior to 2019 amendment) and has already served the decade of life imprisonment sentence.
15. The fact that the applicant/appellant has already undergone about ten years of life imprisonment for aggravated penetrative sexual assault under the POCSO Act (pre-amendment) is not, by itself, a sufficient or decisive ground to suspend the sentence under Section 389 Cr.P.C., particularly given the gravity of POCSO offences and the relationship between the accused and the victim. Recent Supreme Court decisions have tightened, rather than relaxed, the approach to applications for suspension of sentence in heinous offences, including those under the POCSO Act.
16. The POCSO Act was conceived as a specialized legal instrument to safeguard children from sexual exploitation.
The definition of "Aggravated Penetrative Sexual Assault" Section 5 includes the acts committed by the person or persons in position of authority or trust such as parents, relatives and public servants. The sentencing regime for these offences has undergone second transformation which directly impact the current appeal.
17. For offences committed before to the Protection of Children from Sexual Offences (Amendment) Act, 2019, sentencing under Section 6 of POCSO Act prescribed rigorous imprisonment for life. Following the 2019 amendment, the penalties were enhanced, increasing the minimum sentence to 20 years and introducing the possibility of the death penalty, as well as life imprisonment for the remainder of the convict's natural life.
18. When the accused is the biological father, the Supreme Court has categorized such crimes not merely as individual acts but as institutional violations of the fundamental values of the family and society.
19. The judgment in Bhanai Prasad @ Raju Vs. State of Himanchal Pradesh, 2025 SCC OnLine 1636 stands as definite current authority on sentencing for incestuous sexual violence. The Supreme Court upheld the life imprisonment for father who repeatedly assaulted his 10 years' old daughter, the Court emphasises several key points:
(i) Distinct category of offence - Incestuous sexual violence is viewed as separate class of crime that tears through the foundational fabric of familial trust.
(ii) Rejection of mitigation - the Court explicitly stated that there can be no mitigation in sentencing for crimes that subvert the very notion of family as a space of security.
(iii) The demonic character or the act - when the perpetrator is none other than the father, the natural guardian, a moral compass, becomes the source of the most severe violation of a crime assumes what the Court termed a demonic character.
(iv) Refusal of bail and leniency - the Court noted that its judicial consensus would not permit leniency on interim bail in such type of crime, particularly, those involving familial betrayal of trust.
20. In the case of Kashmira Singh Vs. State of Punjab, reported in (1977) 4 SCC 291 is the classic decision. The Supreme Court held that when the appeal cannot be heard within reasonable time and appellant continued incarceration for 5-6 years, it would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. This reasoning was cited in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. C.B.I. through its Director reported in (2007) 1 SCC 70. Again in Om Prakash Sahni Vs. Jai Shankar Chaudhary and another reported in (2023) 6 SCC 123 and Lilaben Vs. State of Gujarat & another reported in 2025 INSC 519.
21. It is admitted fact that the appeal is ripe for final hearing.
22. We have also considered the testimony of PW-1 informant, PW-2 victim, PW-3 Dr. Shaili Singh and other materials on record. The appellant/applicant is convicted for commission of most heinous offence of raping his own minor daughter repeatedly.
23. Taking into consideration the above-said observations and discussions made in foregoing paragraphs, we are of the view that there is no merit in the instant application for suspension of sentence or granting bail to applicant. We also find that the instant appeal is ripe up for final hearing.
24. In view of what has been indicated herein above, the instant application for suspension of sentence is rejected being devoid of merit.
25. It is made clear that the observations made herein above were only for the purpose of adjudication of the present application for suspension of sentence and shall have no bearing on any other proceedings.
(Order on Appeal)
1. List this appeal for final hearing in due course.
2. It is made clear that if the appeal is not heard for six months, after that the appellant may file other bail application.
(Lakshmi Kant Shukla,J.) (Chandra Dhari Singh,J.) May 26, 2026 Atul