High Court

1. Heard Mr. Sapan Kumar Singh, the learned counsel for appellant and the learned A.G.A. for State-opposite party-1.

2. Admit.

3. Summon the lower court record.

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

5. Present appeal came up for orders on the delay condonation application on 05.06.2025 and this Court issued notice to first informant.

6. Office has submitted a report dated 11.07.2025 stating therein that notice issued to first informant has already been served upon first informant. However in spite of service of notice, no one has put in appearance on his behalf to oppose this appeal even in revised call.

7. List this appeal for hearing in due course. (Ref:-Order on the Application for Suspension of Sentence)-

1. Heard Mr. Sapan Kumar Singh, the learned counsel for applicant-appellant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

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

4. Vide order dated 05.06.2025 notice was issued to first informant on the delay condonation application. Office has submitted a report dated 11.07.2025 stating therein that notice issued to first informant/opposite party-2 has been served. However in spite of service of notice, neither any objections/counter affidavit has been filed on behalf of opposite party-2 in opposition to this application for suspension of sentence nor anyone has put in appearance on his behalf to oppose the application for suspension of sentence even in revised call.

5. Feeling aggrieved by the judgment and order dated 24.12.2024 passed by Additional District and Sessions Judge/F.T.C. (Offence against Women), Gorakhpur in Sessions Trial No. 60 of 2012 (State Vs.Bhanu), arising out of Case Crime No. 1419 of 2010 under Section 376/511 I.P.C. Police Station-Khorabar, District- Gorakhpur, applicant-appellant has approached this Court by filing above-mentioned criminal appeal.

6. By means of the impugned judgment and order dated 24.12.2024 passed by Court below, applicant-appellant has been convicted under Section 376/511 IPC and therefore, sentenced to 5 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default in payment of fine, applicant-appellant is to undergo one year additional imprisonment.

7. Mr. Sapan Kumar Singh, the learned counsel for applicant/appellant submits that applicant-appellant was enlarged on bail during the pendency of trial. However, subsequent to the impugned judgment and order dated 24.12.2024 passed by Court below, applicant-appellant was taken into custody. As such, applicant/appellant is under incarceration since 24.12.2024. Accordingly, applicant/appellant has filed above-mentioned application for suspension of sentence/prayer for bail seeking his enlargement on bail during the pendency of present appeal.

8. Learned counsel for applicant/appellant has then contended that though applicant-appellant is a named as well as convicted accused and undergoing incarceration, however, in view of the facts and circumstances as have now crytallized on record, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

9. In furtherance of aforesaid submission, it is contended by the learned counsel for applicant/appellant that applicant/appellant was enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicant/appellant misused the liberty of bail during the pendency of trial. It is thus urged that in view of above, applicant/appellant is also liable to be enlarged on bail during the pendency of present appeal.

10. It is then contented by the learned counsel for applicant- appellant that sentence awarded by Court below against applicant- appellant is a definite sentence punishment inasmuch as, applicant/appellant has been sentenced for a maximum period of 5 years. However, in view of heavy pendency of criminal appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future. On the above premise, the learned counsel for applicant/appellant submits that in view of aforesaid peculiar and precarious circumstance, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

11. To buttress his submission, the learned counsel for applicant/appellant has invited the attention of Court to the judgment of Supreme Court in Atul @ Ashutosh Vs. State of Madhya Pradesh, (2024) 3 SCC 663, wherein the Apex Court has itself observed that where a convict has been awarded definite sentence punishment by the Trial Court and there are no chances of the appeal being heard in near future, then in such a circumstance, such a convict should be enlarged on bail by the Appellate Court during the pendency of appeal.

12. With reference to the record, the learned counsel for applicant/appellant contends that there is no such distinguishing feature on record, on the basis of which, the ratio laid down by Apex Court in aforementioned judgment could be so distinguished so as to deny bail to applicant/appellant during the pendency of present appeal. On the above premise, the learned counsel for applicant/appellant submits that in view of above and also the observations made by Apex Court in aforementioned judgment, applicant-appellant is liable to be enlarged on bail during the pendency of present appeal.

13. Challenging the veracity of the conviction and sentence awarded against applicant/appellant by Court below, the learned counsel for applicant/appellant has invited the attention of Court to the depositions of the prosecutrix itself which has been dealt with by Court below in paragraph-9 of the impugned judgment at page 16 of the paper book. With reference to the same, the learned counsel for applicant/appellant submits that as per the statements of the prosecutrix herself, it is apparent that no penetrative sexual assault was committed by applicant/appellant on the prosecutrix. He has then referred to the medico legal examination report of the prosecutrix, copy of which is on record at page 69 of the paper book. On the basis of above, he, submits that the doctor who medically examined the prosecutrix did not find any sign on her body so as to denote commission of deliberate and forceful penetrative sexual assault. Since no penetrative sexual assault had taken place, therefore, no offence under Section 376 I.P.C. can be said to be made out against applicant/appellant. To buttress his submission, he has relied upon the judgment of the Supreme Court in Aman Kumar and another Vs. State of Haryana (2004) 4 SCC 379. It is further contended by the learned counsel for applicant/appellant that since the occurrence giving rise to present criminal proceedings occurred on 13.08.2010 therefore, the amended provisions of Section 375 I.P.C. which came into force in the year 2013 shall not apply.

14. On the above premise, it is thus urged by the learned counsel for applicant/appellant that conviction and sentence awarded to applicant/appellant under Sections 376/511 I.P.C. is not only illegal but also perverse. As such, the same is liable to be set aside by this Court.

15. It is then contended by the learned counsel for applicant/appellant that the prosecutrix herself could not establish the very story which is set out to prove against the applicant/appellant beyond reasonable doubt much less a reasonable doubt. Two of the witnesses who were named by the prosecutrix as witnesses of the occurrence in question have clearly denied their presence at the time and place of occurrence. It is further submitted by the learned counsel for applicant/appellant that prosecutrix is a resident of village which is situate five kilometers away from the residence of the applicant/appellant. On the above premise, the prosecution story as unfolded in the FIR giving cause for commission of the crime in question is unworthy of acceptance. He, therefore, submits that in view of above, the prosecutrix was neither credible nor reliable, therefore, her depositions could not have been considered for awarding the impugned conviction and sentence to applicant/appellant. As such, the impugned judgment and order passed by Court below is liable to be set aside by this Court.

16. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant/appellant is in jail since 24.12.2024. As such, he has undergone more than seven months of incarceration from the date of impugned judgment and order. Apart from above, since there is uncertainty in the hearing of present appeal in near future and coupled with the fact that the sentence awarded to applicant/appellant is a definite sentence punishment and furthermore, no such compelling circumstance has emerged on record necessitating the custodial arrest of applicant/appellant during the pendency of present appeal and also the fact that applicant/appellant was enlarged on bail during the pendency of appeal but there is nothing on record to show that applicant/appellant misused the liberty of bail, 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, then in that eventuality, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

17. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail during the pendency of present appeal. According to the learned A.G.A. offence complained of against applicant/appellant is not only illegal but also immoral. As such, applicant/appellant is guilty of dislodging the modesty of the prosecutrix deliberately and forcibly. As such, offence complained of against applicant/appellant is not only private in nature but a crime against society. Learned A.G.A. thus contends that no indulgence be granted by this Court in favour of applicant/appellant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the application for suspension of sentence as noted herein above, with reference to the record at this stage.

18. Having heard, the learned counsel for applicant-appellant, the learned A.G.A. for State-opposite party-1, upon perusal of record, evidence, nature and gravity of offence, complicity of accused- applicant/appellant, accusation made, this Court finds that the submissions urged by the learned counsel for application/appellant in support of the application for suspension of sentence/prayer for bail as noted herein above are clearly borne out from the record. Furthermore, the same could not be dislodged by the learned A.G.A. at this stage. Therefore, irrespective of the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence/prayer for bail but without making any comments on the merits of appeal, this Court finds that applicant- appellant has made out a case for grant of bail.

19. In view of the discussion made above, this application for suspension of sentence/prayer for bail succeeds and is liable to be allowed.

20. It is, accordingly, allowed.

21. Let the applicant/appellant- Bhanu, be released on bail in Case Crime No. 1419 of 2010 under Section 376/511 I.P.C. Police Station-Khorabar, District-Gorakhpur, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.

22. It is, however, provided that the amount of fine awarded by court below shall be deposited by applicant-appellant with the Court below within a period of one month from today failing which, the bail granted to applicant-appellant under this order shall stand automatically cancelled and he shall be taken into custody at once to serve out the sentence awarded by Court below. Order Date :- 7.8.2025 Imtiyaz

1. Heard Mr. Sapan Kumar Singh, the learned counsel for appellant and the learned A.G.A. for State-opposite party-1.

2. Admit.

3. Summon the lower court record.

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

5. Present appeal came up for orders on the delay condonation application on 05.06.2025 and this Court issued notice to first informant.

6. Office has submitted a report dated 11.07.2025 stating therein that notice issued to first informant has already been served upon first informant. However in spite of service of notice, no one has put in appearance on his behalf to oppose this appeal even in revised call.

7. List this appeal for hearing in due course. (Ref:-Order on the Application for Suspension of Sentence)-

1. Heard Mr. Sapan Kumar Singh, the learned counsel for applicant-appellant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

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

4. Vide order dated 05.06.2025 notice was issued to first informant on the delay condonation application. Office has submitted a report dated 11.07.2025 stating therein that notice issued to first informant/opposite party-2 has been served. However in spite of service of notice, neither any objections/counter affidavit has been filed on behalf of opposite party-2 in opposition to this application for suspension of sentence nor anyone has put in appearance on his behalf to oppose the application for suspension of sentence even in revised call.

5. Feeling aggrieved by the judgment and order dated 24.12.2024 passed by Additional District and Sessions Judge/F.T.C. (Offence against Women), Gorakhpur in Sessions Trial No. 60 of 2012 (State Vs.Bhanu), arising out of Case Crime No. 1419 of 2010 under Section 376/511 I.P.C. Police Station-Khorabar, District- Gorakhpur, applicant-appellant has approached this Court by filing above-mentioned criminal appeal.

6. By means of the impugned judgment and order dated 24.12.2024 passed by Court below, applicant-appellant has been convicted under Section 376/511 IPC and therefore, sentenced to 5 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default in payment of fine, applicant-appellant is to undergo one year additional imprisonment.

7. Mr. Sapan Kumar Singh, the learned counsel for applicant/appellant submits that applicant-appellant was enlarged on bail during the pendency of trial. However, subsequent to the impugned judgment and order dated 24.12.2024 passed by Court below, applicant-appellant was taken into custody. As such, applicant/appellant is under incarceration since 24.12.2024. Accordingly, applicant/appellant has filed above-mentioned application for suspension of sentence/prayer for bail seeking his enlargement on bail during the pendency of present appeal.

8. Learned counsel for applicant/appellant has then contended that though applicant-appellant is a named as well as convicted accused and undergoing incarceration, however, in view of the facts and circumstances as have now crytallized on record, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

9. In furtherance of aforesaid submission, it is contended by the learned counsel for applicant/appellant that applicant/appellant was enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicant/appellant misused the liberty of bail during the pendency of trial. It is thus urged that in view of above, applicant/appellant is also liable to be enlarged on bail during the pendency of present appeal.

10. It is then contented by the learned counsel for applicant- appellant that sentence awarded by Court below against applicant- appellant is a definite sentence punishment inasmuch as, applicant/appellant has been sentenced for a maximum period of 5 years. However, in view of heavy pendency of criminal appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future. On the above premise, the learned counsel for applicant/appellant submits that in view of aforesaid peculiar and precarious circumstance, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.

11. To buttress his submission, the learned counsel for applicant/appellant has invited the attention of Court to the judgment of Supreme Court in Atul @ Ashutosh Vs. State of Madhya Pradesh, (2024) 3 SCC 663, wherein the Apex Court has itself observed that where a convict has been awarded definite sentence punishment by the Trial Court and there are no chances of the appeal being heard in near future, then in such a circumstance, such a convict should be enlarged on bail by the Appellate Court during the pendency of appeal.

12. With reference to the record, the learned counsel for applicant/appellant contends that there is no such distinguishing feature on record, on the basis of which, the ratio laid down by Apex Court in aforementioned judgment could be so distinguished so as to deny bail to applicant/appellant during the pendency of present appeal. On the above premise, the learned counsel for applicant/appellant submits that in view of above and also the observations made by Apex Court in aforementioned judgment, applicant-appellant is liable to be enlarged on bail during the pendency of present appeal.

13. Challenging the veracity of the conviction and sentence awarded against applicant/appellant by Court below, the learned counsel for applicant/appellant has invited the attention of Court to the depositions of the prosecutrix itself which has been dealt with by Court below in paragraph-9 of the impugned judgment at page 16 of the paper book. With reference to the same, the learned counsel for applicant/appellant submits that as per the statements of the prosecutrix herself, it is apparent that no penetrative sexual assault was committed by applicant/appellant on the prosecutrix. He has then referred to the medico legal examination report of the prosecutrix, copy of which is on record at page 69 of the paper book. On the basis of above, he, submits that the doctor who medically examined the prosecutrix did not find any sign on her body so as to denote commission of deliberate and forceful penetrative sexual assault. Since no penetrative sexual assault had taken place, therefore, no offence under Section 376 I.P.C. can be said to be made out against applicant/appellant. To buttress his submission, he has relied upon the judgment of the Supreme Court in Aman Kumar and another Vs. State of Haryana (2004) 4 SCC 379. It is further contended by the learned counsel for applicant/appellant that since the occurrence giving rise to present criminal proceedings occurred on 13.08.2010 therefore, the amended provisions of Section 375 I.P.C. which came into force in the year 2013 shall not apply.

14. On the above premise, it is thus urged by the learned counsel for applicant/appellant that conviction and sentence awarded to applicant/appellant under Sections 376/511 I.P.C. is not only illegal but also perverse. As such, the same is liable to be set aside by this Court.

15. It is then contended by the learned counsel for applicant/appellant that the prosecutrix herself could not establish the very story which is set out to prove against the applicant/appellant beyond reasonable doubt much less a reasonable doubt. Two of the witnesses who were named by the prosecutrix as witnesses of the occurrence in question have clearly denied their presence at the time and place of occurrence. It is further submitted by the learned counsel for applicant/appellant that prosecutrix is a resident of village which is situate five kilometers away from the residence of the applicant/appellant. On the above premise, the prosecution story as unfolded in the FIR giving cause for commission of the crime in question is unworthy of acceptance. He, therefore, submits that in view of above, the prosecutrix was neither credible nor reliable, therefore, her depositions could not have been considered for awarding the impugned conviction and sentence to applicant/appellant. As such, the impugned judgment and order passed by Court below is liable to be set aside by this Court.

16. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant/appellant is in jail since 24.12.2024. As such, he has undergone more than seven months of incarceration from the date of impugned judgment and order. Apart from above, since there is uncertainty in the hearing of present appeal in near future and coupled with the fact that the sentence awarded to applicant/appellant is a definite sentence punishment and furthermore, no such compelling circumstance has emerged on record necessitating the custodial arrest of applicant/appellant during the pendency of present appeal and also the fact that applicant/appellant was enlarged on bail during the pendency of appeal but there is nothing on record to show that applicant/appellant misused the liberty of bail, 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, then in that eventuality, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

17. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail during the pendency of present appeal. According to the learned A.G.A. offence complained of against applicant/appellant is not only illegal but also immoral. As such, applicant/appellant is guilty of dislodging the modesty of the prosecutrix deliberately and forcibly. As such, offence complained of against applicant/appellant is not only private in nature but a crime against society. Learned A.G.A. thus contends that no indulgence be granted by this Court in favour of applicant/appellant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the application for suspension of sentence as noted herein above, with reference to the record at this stage.

18. Having heard, the learned counsel for applicant-appellant, the learned A.G.A. for State-opposite party-1, upon perusal of record, evidence, nature and gravity of offence, complicity of accused- applicant/appellant, accusation made, this Court finds that the submissions urged by the learned counsel for application/appellant in support of the application for suspension of sentence/prayer for bail as noted herein above are clearly borne out from the record. Furthermore, the same could not be dislodged by the learned A.G.A. at this stage. Therefore, irrespective of the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence/prayer for bail but without making any comments on the merits of appeal, this Court finds that applicant- appellant has made out a case for grant of bail.

19. In view of the discussion made above, this application for suspension of sentence/prayer for bail succeeds and is liable to be allowed.

20. It is, accordingly, allowed.

21. Let the applicant/appellant- Bhanu, be released on bail in Case Crime No. 1419 of 2010 under Section 376/511 I.P.C. Police Station-Khorabar, District-Gorakhpur, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.

22. It is, however, provided that the amount of fine awarded by court below shall be deposited by applicant-appellant with the Court below within a period of one month from today failing which, the bail granted to applicant-appellant under this order shall stand automatically cancelled and he shall be taken into custody at once to serve out the sentence awarded by Court below. Order Date :- 7.8.2025 Imtiyaz