Allahabad High Court
Mahkar Singh vs State Of U.P. on 11 August, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 91 Case :- CRIMINAL APPEAL No. - 3825 of 2022 Appellant :- Mahkar Singh Respondent :- State of U.P. Counsel for Appellant :- Ajay Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Samit Gopal,J.
Order on Appeal Admit.
Summon the lower court record.
Order on Criminal Misc. Suspension of Sentence No. 1 of 2022 Heard Sri Ajay Kumar Srivastava, learned counsel for the appellant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record.
This appeal has been filed against the judgement and order dated 19.05.2022 passed by the Additional District & Sessions Judge / Special Judge, POCSO Act, Hapur in Special Sessions Trial No. 527 of 2020 (State vs. Makhar Singh) arising out of Case Crime No. 81 of 2014, under Sections 363, 366 I.P.C., Police Station Simbhawali, District Hapur, convicting and sentencing the appellant under Section 363 I.P.C. for 03 years rigorous imprisonment & fine of Rs. 5000/- and in default of payment of fine to further undergo 03 months additional rigorous imprisonment and under Section 366 I.P.C. for 05 years rigorous imprisonment & fine of Rs. 5000/- and in default of payment of fine to further undergo 03 months additional rigorous imprisonment. The sentences have been ordered to run concurrently.
Learned counsel for the appellant argued that the maximum punishment awarded to the appellant is 05 years rigorous imprisonment with fine and default clause along with conviction in other section. The sentences have been ordered to run concurrently. The appellant has been extended the benefit of set off under Section 428 Cr.P.C. It is argued that the appellant was on bail during the pendency of trial. It is further argued that the appellant has been acquitted of the charges levelled against him under Section 376 read with Section 34 I.P.C. and Section 3/4 of the POCSO Act. Learned counsel has argued that the appellant is not named in the first information report. His implication in the present matter has surfaced during the course of investigation. It is argued that there is difference in the ages as given in the educational certificate and that as opined by the C.M.O. concerned, as the victim as per the school documents was aged about 16 years but as per the certificate of the C.M.O. she is aged about 19 years. The appellant is aged about 65 years as stated in paragraph 9 of the affidavit. The implication of the appellant is an afterthought. The first information report has been lodged after a delay of 35 days for which there is no plausible explanation. The appellant has no criminal history as stated in para 12 of the affidavit.
Per contra, learned counsel for the State has opposed the prayer for bail.
Looking to the facts and circumstances of the case, this Court is of the view that the appellant be released on bail.
Let the appellant- Mahkar Singh, convicted and sentenced in Special Sessions Trial No. 527 of 2020 (State vs. Makhar Singh) arising out of Case Crime No. 81 of 2014, under Sections 363, 366 I.P.C., Police Station Simbhawali, District Hapur, be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
On acceptance of bail bond and personal bond, the lower court concerned shall transmit the photostat copies thereof to this Court for being kept on the record.
It is clarified that realization of fine is not stayed.
Order Date :- 11.8.2022 AS Rathore (Samit Gopal,J.)