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2017 DIGILAW 358 (ALL)

Sarju @ Shera v. State of Uttar Pradesh

2017-01-25

KARUNA NAND BAJPAYEE

body2017
JUDGMENT : Karuna Nand Bajpayee, J. Ref:- Criminal Misc. Bail Application No. 4122 of 2015. This application has been filed seeking the release of the appellant on bail, who has been convicted and sentenced in S.T. No. 217 of 2011, State v. Sarju @ Sheera, Case Crime No. 837 of 2011, under sections 376, 506 I.P.C., Police Station-Aite, District-Jalaun at Orai. Heard learned counsel for the appellant and learned A.G.A. 2. Perused the record. 3. Submission of counsel for the appellant is that during the course of trial when the victim was examined, she did not support the prosecution case and even the first informant had also not supported the prosecution case. It was also submitted that the appellant is in jail since 22.7.2011 and he has already spent more than five years and six months in jail and there is hardly any likelihood of any early hearing of this appeal. Counsel has also submitted that in view of Section 436-A of Cr.P.C. also where the accused has undergone the period exceeding one half of the maximum punishment, he should be released on bail and therefore, the appellant deserves to be released on bail. In addition, it was also submitted that on the basis of the statement of a particular witness given under section 164 of Cr.P.C., 1973 conviction cannot be upheld. 4. Learned A.G.A. has opposed the prayer for bail and has submitted that the appellant is none else than the father of the victim herself and this is not a case of ordinary rape. Attention was drawn to the contents of the F.I.R. which was lodged by the mother of the appellant itself in which it was alleged that when she came to the house, she found her grand-daughter (the victim), who was a student of Class 5th and was of about 11 years in age, lying in a semi-conscious condition and she found her son (the appellant) running away from the house on her arrival. The woeful story of commission of rape on the victim was narrated to the first informant. It was also told that the appellant also destroyed the material evidence and tried to clean up the blood and also burnt the clothes. It was also narrated that the rape was committed by the appellant on the victim by keeping her on the pain of death. It was also told that the appellant also destroyed the material evidence and tried to clean up the blood and also burnt the clothes. It was also narrated that the rape was committed by the appellant on the victim by keeping her on the pain of death. Attention was also drawn to the statement given by the victim before the Magistrate under section 164 of Cr.P.C., 1973 in which also there is no ambiguity in the allegations and it is not difficult to see that even at that stage, it was alleged by the victim that after locking the doors from inside, her own father, the appellant on the point of knife took her aside and ravished her honour. Attention was also drawn to the medical aspect of the case which indicates that hymen of the victim was found torn and the spermatozoas were also found which lends clinching corroboration to the fact of rape having been committed upon the victim and there is no escape from that finding. Submission is that it is not unusual that when the accused is father of the victim itself, in such circumstances the witnesses tend to go back on their words and then try to save the accused and take him off the hook. But the totality of the facts and circumstances of the case and the evidence available on record are such which definitely show that it is the appellant, who has committed this depraved crime upon his own daughter. In a case of this nature, the period of detention is hardly any ground to consider the point of bail liberally. Contention of learned A.G.A. is that there are certain relationships which are so sacrosanct that it cannot be even imagined that the perversity of some delinquent would ever commit the breach of the same. The relationship between the father and the daughter is one of the most sanctified relationships since ages. The allegations made by the victim are of extremely abhorrent nature and speak about the debased criminal proclivities of the accused-applicant, who is none else than the father of the victim. Incidents of such sort cannot be liberally countenanced with by the Courts. The relationship between the father and the daughter is one of the most sanctified relationships since ages. The allegations made by the victim are of extremely abhorrent nature and speak about the debased criminal proclivities of the accused-applicant, who is none else than the father of the victim. Incidents of such sort cannot be liberally countenanced with by the Courts. It has been further submitted that ordinarily the father is supposed to be the custodian of the rights and safety of his children but in the present case the protector has himself become the offender and has attempted to violate the chaste modesty of his own daughter. It has also been submitted that it is highly improbable to suggest that a minor daughter of somebody would make such kind of extreme allegations upon his own father if there was no truth in it just for the purposes of false implication. It sounds highly improbable to suggest that the girl would stake her own personal honour and would expose herself to become the subject of controversy and ridicule of such defamatory nature out of sheer ill-will or malice towards her father. It sounds highly improbable to suggest that the girl would stake her own personal honour and would expose herself to become the subject of controversy and ridicule of such defamatory nature out of sheer ill-will or malice towards her father. So far as the argument raised by the counsel with regard to Section 436-A of Cr.P.C. is concerned, learned A.G.A. has drawn the attention of the Court to the language of Section 436-A of Cr.P.C. which reads as follows:- "Maximum period for which an under trial prisoner can be detained Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded." 5. Submission is that it is so clear from the reading of Section 436-A of Cr.P.C. itself that this section relates to under trials and the period of detention that is contemplated in the section is during the course of investigation, inquiry or trial. Submission is that it is so clear from the reading of Section 436-A of Cr.P.C. itself that this section relates to under trials and the period of detention that is contemplated in the section is during the course of investigation, inquiry or trial. The section does not apply where the guilt of accused has been upheld after completion of the trial and where the appellant is not undergoing the detention as an under trial but is undergoing the sentence which has been awarded after holding him guilty for the offence, and the detention of the appellant in jail is after following "the procedure established by the law" as contemplated in the Constitution of India itself. It is not a case in which it is to be yet seen whether the appellant was guilty or not. It is also not the case having facts on the basis of which a generalized presumption of innocence may be pleaded, because the appellant has already been tried and been found guilty. Sentence of conviction that has been awarded, does not give rise to presumption of innocence which stands completely decimated by the judgment of conviction. Apart from this, it may also be pointed out that the Section 436-A of Cr.P.C. is also not an unconditional section and a proviso to the same has been enacted by the legislature in its wisdom which also contemplates that there may be many such situations and many such cases in which despite the period of detention having exceeded the one half of the maximum period of sentence provided in the Act, the detention may be further continued. The only thing expected by the Court is that the reasons of such continued detention shall be recorded in writing. So far as the present case is concerned, there are strong reasons why the appellant should not be released on bail despite having spent more than one half of the sentence awarded to him by the trial court. He is neither under trial nor it is an ordinary category of crime in which he has been convicted. Learned A.G.A. has also drawn the attention of the Court to the internal page no. 9 of the impugned judgment, indicating that the appellant has a background of long criminal antecedents also and not less than nine criminal cases had been registered against him. Learned A.G.A. has also drawn the attention of the Court to the internal page no. 9 of the impugned judgment, indicating that the appellant has a background of long criminal antecedents also and not less than nine criminal cases had been registered against him. Contention is that it will be very dicey to release him on bail as a person of such character and background is very likely to flee away from the course of justice for fear of punishment. 6. Looking at the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case and also keeping in view the long criminal history of the appellant and the extreme depraved nature of the offence committed by him, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant stands rejected.