Allahabad High Court
Faizan Ali vs State Of U.P. on 25 July, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:122769 Court No. - 80 Case :- CRIMINAL APPEAL No. - 6293 of 2025 Appellant :- Faizan Ali Respondent :- State of U.P. Counsel for Appellant :- Anil Kumar,Imran Ullah,Mohit Singh Counsel for Respondent :- Shri Prakash Mishra,G.A. Hon'ble Rajeev Misra,J.
Ref: On Appeal
Heard Mr. Imranullah along with Mr. Mohit Singh, the learned counsel for appellant, the learned AGA for State and Mr. Bal Mukund Singh, the learned counsel representing first informant.
Learned counsel for appellant submits that due to inadvertence the first informant/prosecutrix has not been impleaded as party respondent in present appeal. The present appeal arises out of conviction and sentence under section 376 IPC. Therefore the prosecutrix is a necessary and proper party. He therefore seeks permission of the Court to amend the cause title of this appeal as well as the application for suspension of sentence by impleading the prosecutrix/first informant as opposite party-2.
Pryer made by the learned counsel for appellant is bonafide. Same is not opposed by the learned A.G.A. Accordingly, it is allowed.
Let necessary amendment be carried out by the learned counsel for appellant in the cause title of the appeal as well as the application for suspension of sentence during course of the day.
Admit.
Summon the lower court record.
Notice on behalf of State/opposite party-1 has been accepted by the learned A.G.A.
Mr. Bal Mukund Singh, Advocate, has put in appearance on behalf of first informant/opposite party-2.
List this appeal for hearing in due course.
Ref: Order on Application for Suspension of Sentence
Heard Mr. Imranullah along with Mr. Mohit Singh, the learned counsel for applicant/appellant, the learned AGA for State/opposite party-1 and Mr. Bal Mukund Singh, the learned counsel representing first informant/opposite party-2.
Perused the record.
Feeling aggrieved by the judgement and order dated 8.7.2025, passed by Additional District and Sessions Judge/Fast Track Court(Crime against women), Gorakhpur in Sessions Case No. 2147 of 2022 (State Vs. Faizan Ali) arising out of Case Crime No. 60 of 2019, under sections 498A, 376/511, 323, 504, 506 IPC, and Section 3/4 D.P. Act, Police Station- Kotwali, District- Gorakhpur applicant/appellant has approached this Court by filing aforementioned criminal appeal.
The sentence awarded to applicant/appellant under the impugned judgement and order is to the effect that applicant /appellant has been sentenced to 2 years rigorous imprisonment along with fine of Rs. 5,000/- for an offence under section 498A IPC and in case of default in payment of fine, applicant/appellant is to undergo 1 month additional imprisonment, under section 376/511 IPC 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, under section 323 IPC and therefore, sentenced to six months rigorous imprisonment along with fine of Rs. 1,000/- and in case of default in payment of fine, applicant/appellant is to undergo 15 days additional imprisonment, under section 506 IPC and therefore, sentenced to one year rigorous imprisonment along with fine of Rs. 3,000/- and in case of default in payment of fine, applicant/appellant is to undergo 1 month additional imprisonment, under section 4 D.P. Act and therefore, sentenced to one year rigorous imprisonment along with fine of Rs. 3,000/- and in case of default in payment of fine, applicant/appellant is to undergo 1 month additional imprisonment. The impugned judgement and order further records that all the sentences shall run concurrently.
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 5.7.2025 applicant/appellant was taken into custody. As such, applicant/appellant is under incarceration since 5.7.2025. Accordingly, applicant/appellant has filed above mentioned application for suspension of sentence/grant of bail during the pendency of present appeal.
Mr. Imranullah, the learned counsel for applicant/appellant, next submits that even though applicant/appellant is a named and convicted accused and undergoing incarceration, however, irrespective of above but in view of the facts as have now crystalized on record, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal.
In furtherance of aforesaid submission, the learned counsel for applicant/appellant submits 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. As such, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal also.
It is then contended by the learned counsel for applicant/appellant that sentence awarded by Court below against applicant/appellant is a definite sentence/punishment, inasmuch as the maximum sentence awarded to applicant/appellant by Court below is five years. However, in view of heavy pendency of criminal appeals before this Court coupled with the fact that there is an acute shortage of Hon’ble Judges in this Court, therefore there is no likelihood of the present appeal being heard in near future.On the aforesaid peculiar and precarious circumstance, the learned counsel for applicant/appellant thus submits that applicant/appellant is liable to be enlarged on bail.
To buttress his submission the learned counsel for applicant/appellant has referred to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 wherein the Apex Court has itself observed that where definite sentence, punishment has been awarded by Court below against an accused and there is no possibility of the appeal being heard in near future, then in such a circumstances the appellate Court must enlarge such a convict on bail during the pendency of appeal.
According to the learned counsel for applicant/appellant there does not exist any such distinguishing feature in the case of present applicant/appellant 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.
Challenging the veracity of impugned judgement and order, the learned counsel for applicant/appellant submits that it is an admitted case of the prosecutrix that occurrence giving rise to present proceedings is alleged to have occurred on 13.10.2018, whereas the F.I.R. in respect of said occurrence was lodged on 14.3.2019. As such, admittedly the F.I.R. has been lodged after expiry of a period of five months. He, therefore, submits that the F.I.R is highly belated.However, neither in the F.I.R. nor in the statement of prosecutrix recorded under sections 161 and 164 Cr.P.C. nor in her deposition before court below any explanation has come forward, explaining the delay/laches in filing the F.I.R. Since the F.I.R. is highly belated, therefore impugned judgement and order awarding conviction and sentence to applicant/appellant is liable to be set aside by this Court on aforesaid ground alone. To lend legal support to his submission, the learned counsel for applicant/appellant has relied upon the judgements of Supreme Court in P. Ramchandra Rao Vs. State of Karnataka (2002) 4 SCC 578, P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866/2019(5) SCC 403, Hasmukhlal D. Vora and Another Vs. State of U.P. (2022) 15 SCC 164, Sekaran Vs. State of Tamil Nadu (2024) 2 SCC 176, Shivendra Pratap Singh Thakur @ Banti Vs. State of Chhattisgarh and Others, 2024 SCC Online SC 938. With reference to above the learned counsel for applicant/appellant submits that on account of unexplained delay in lodging the F.I.R. the impugned proceedings cannot be sustained. Much emphasis is laid on paragraph 5 of the judgement in Shivendra Pratap Singh Thakur @ Banti (Supra) wherein Apex Court quashed the proceedings on account of unexplained delay of 39 days in lodging the F.I.R. On the aforesaid conspectus, it is thus urged by the learned counsel for applicant/appellant that impugned proceedings cannot be sustained and therefore the judgement and order passed by court below is liable to be quashed by this Court.
It is then contended that prosecutrix alleges that her modesty was dislodged by applicant/appellant deliberately and forcibly. However, the medical evidence does not support the ocular version of occurrence. Learned counsel for applicant/appellant has then invited the attention of the Court to the F.I.R., copy of which is on record at page 94 of the paper book, with reference to the same it is urged by the learned counsel for applicant/appellant that F.I.R. is not the encyclopedia of prosecution case but it does reflect the basic prosecution case. In support of above, reliance is placed upon the following judgements of Supreme Court in (i) Manoj@Bhau and ors. vs. State of Maharashtra, (1999) 4 SCC 268, (ii) Subhash Kumar vs. State of Uttarakhand, (2009) 6 SCC 641, (iii) Amish Devgan vs. Union of India and ors., (2021) 1 SCC . On the above premise, the learned counsel for applicant/appellant submits that the basic prosecution case as unfolded in the F.I.R. is that only an attempt to commit rape was made. As such, none of the conditions enumerated in section 375 IPC has been mentioned in the F.I.R.. However, prosecutrix in her subsequent statement under section 161 Cr.P.C. has supported the F.I.R. but made an improvement that her modesty was dislodged by applicant/appellant by torning her clothes and further attempt was made to touch the private parts of the prosecutrix. However, in her subsequent statement under section 164 Cr.P.C., the prosecutix has departed from the basic prosecution story explained in her statement under section 161 Cr.P.C. Prosecutrix has now alleged that her modesty was dislodged by forcibly committing rape upon her. This statement of the prosecutrix was reiterated in her deposition before Court below. Drawing a parallel in between the statements of the prosecutrix referred to above and her deposition before Court below, the learned counsel for applicant/appellant submits that deposition of the prosecutrix suffers from the vice of exaggeration and embellishment. On the aforesaid conspectus, the learned counsel for applicant/appellant submits that prosecturix is neither worthy of credit nor reliable. As such, Court below has erred in law in awarding conviction and sentence to applicant/appellant under section 376 IPC on the basis of such evidence. To lend legal support to his submission the learned counsel for applicant/appelalnt has relied upon the judgement of this Court in Anwar @ Sunny @ Kauwal Vs. State of U,P. (2016) SCC On line Alld 49, wherein this Court after drawing a parallel in between the previous statement of the prosecutrix and her deposition before Court below decided her deposition as unworthy of acceptance.
It is then contended by the learned counsel for applicant/appellant that dispute between the parties is basically a matrimonial dispute which has been dragged into criminal litigation. Inviting the attention of the Court to the deposition of the prosecutrix before Court below, as detailed by Court below, which is on record at page 139 of the paper book, learned counsel for applicant/appellant submits that from the perusal of the deposition of the prosecutrix, it is explicitly clear that no statement has come forward from the first informant/prosecutrix that there was an immediate demand of dowry, before the occurrence nor the manner of demand of dowry has been detailed. Referring to the judgement of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599,, the learned counsel for applicant/appellant submits that since the deposition of prosecutrix qua the commission of cruelty upon her non fulfillment of demand of dowry as well as the demand of dowry is devoid of material particulars, therefore the allegations made by the prosecutrix that an offence under section 498A IPC/ 4 of the D.P. Act was committed upon her is not born out from the record. He, therefore submits that Court below has thus erred in awarding conviction and sentence to applicant/appellant under section 498A IPC and Section 4 of of D.P. Act.
Learned counsel for applicant/appellant has also referred to the judgement of Supreme Court in Vishnu @ Undrya Vs. State of Maharashtra (2006) 1 SCc 283 and Vinod Katara Vs. State of Uttar Pradesh (2013) 15 SCC 210 in support of his submission that when the prosecutrix has deposed before court below and the Court finds that her deposition is not liable to be accepted on its’s face valuse, then the court may look for other direct or substantial evidence. However, there is no such evidence on record, which may lend to the proof of guilt of applicant/appellant.
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 is in jail since 5.7.2025. As such, he has undergone 20 days incarceration, subsequent to the impugned judgement. In view of above, the uncertainty in the hearing of present appeal, in near future the fact that applicant/appellant was enlarged on bail during the pendency of trial, but there is nothing on record to show that applicant/appellant misused the liberty of bail, and there being no such compelling circumstance on record, warranting custodial arrest of applicant/appellant during the pendency of present appeal learned counsel for applicant/appellant would thus submit that applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. In case the applicant/appellant is enlarged on bail, then in that eventuality he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.
Per contra, the learned A.G.A. representing State/opposite party-1 and Mr. Bal Mukund Singh the leanred counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant/appellant is a named and convicted accused, undergoing incarceration, therefore, he does not deserve any indulgence by this Court. Learned A.G.A. has then invited the attention of the Court to the impugned judgment and order passed by Court below. With reference to the same learned A.G.A. contends that applicant/appellant has been convicted under section 376 IPC, also meaning thereby the applicant/appellant has deliberately and forcibly dislodged the modesty of the prosecutrix who is no one else but the Bhabi of applicant/appellant. On the aforesaid premise, the learned A.G.A. submits that offence complained of against applicant/appellant is not only illegal but also immoral. Infact the criminality committed by applicant/appellant is not private in nature but a crime against society. On the aforesaid conspectus, the learned A.G.A. contends that interest of justice shall better be served in case the appeal itself is heard finally rather than enlarging the applicant/appellant on bail during the pendency of appeal. Learned A.G.A. has then referred to the judgement of Suprme Court in State of Himanchal Pradesh Vs. Prem Singh (2009) 1 SCC 420 ,wherein Apex Court has observed that if there is delay in lodging the F.I.R. in respect of sexual offence, the same is liable to be ignored. He, therefore submits that impugned judgement/order is not liable to be set aside on the ground of delay in lodging the F.I.R. According to the learned A.G.A. the prosecutrix,has fully supported the prosecution story. Prosecutrix was cross-examined at length and in detail on behalf of the accused i.e. applicant/appellant, yet he could not dislodge as she remained consistent. As such, no illegality can be attached to the impugned judgement and order. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant, with reference to the record at this stage.
Mr. Bal Mukund Singh, the learned counsel for applicant/appellant has also opposed the prayer for bail. He has however, adapted the submission urged by the learned A.G.A.
Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State, the learned counsel for first informant, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made this Court finds that applicant/appellant is a named and convicted accused, applicant/appellant was enlarged on bail during the pendency of trial, however, there is noting on record to show that applicant/appellant misused the liberty of bail, applicant/appellant has been sentenced to five years maximum sentence, as such sentence awarded by Court below to applicant-appellant is a definite sentence punishment, however, in view of heavy pendency of criminal appeals before this Court and an acute shortage of Hon’ble Judges in this Court, there is no likelihood of the present appeal being heard in near future, as such, in view of aforementioned peculiar and precarious circumstance, prima fact the applicant/appellant is liable to be to be enlarged on bail, during the pendency of present appeal the Apex Court in the case of Atul @ Ashutosh (Supra) has itself observed that where sentence awarded to a convict is a definite sentence punishment and there are no chances of the appeal being heard in near future, then in such a circumstance such a convict be enlarged on bail during the pendency of appeal, the learned A.G.A. could not point out any such distinguishing feature from the record so as to distinguish the aforementioned judgement and deny bail to applicant/appellant, the clean antecedents of applicant/appellant inasmuch as he has no criminal history to his credit, except the present one, applicant/appellant has been convicted for an offence under section 498 IPC and Section 4 of D.P Act, perusal of deposition of prosecutrix before Court below will go to show that parameters which are required to establish an offence under section 498A IPC and Section 4 of the of D.P. Act as explanation by the Apex Court in the case of Kahkashan Kausar (supra) are not satisfied inasmuch the deposition of the prosecutrix before Court below as P.W.1 is devoid of material particulars in that regard, in the F.I.R. giving rise to present criminal proceedings, prosecutrix has alleged that an attempt was made by the applicant/appellant to commit rape upon her, however, the prosecutrix in her statement under section 161 Cr.P.C. has supported the F.I.R. but has improved upon the same by stating that her clothes were torned and an attempt was made to rape her. the prosecutrix has completely departed from her previous statement in her subsequent statement under section 164 Cr.P.C. which has been reiterated and rejoined by the prosecutrix in her deposition before Court below, in view of above, the deposition of prosecutrix which is infact different from prosecution story as unfolded in the F.I.R suffers from vice of embellishment, exaggeration, for which no explanation has come forward, as such, in view of the law laid down by the Court in the case of Anwar (supra) the same is not worthy of reliance as per the deposition of the prosecutrix, the material particulars regarding an offence under section 498A and Section 4 of the D.P. Act conspicuous by the absence, therefore in view of the law laid down by Apex Court in Kahkashan Kausar (Supra) prima face no offence under section 498A/Section 4 D.P.C. can be said to be made out. Prima facie this appeal is liable to be allowed, in view of judgement of Om Prakash (Supra), wherein it has been observed that if the appellate court records a finding that prima facie the appeal is liable to be allowed and the accused can be enlarged on bail, no such incriminating circumstance has emerged on record so as to warrant custodial arrest of applicant/appellant during the pendency of present appeal, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing the first informant/prosecutrix in opposition to this application for suspension of sentence, but without making any comment on the merits of the appeal, applicant/appellant has made out a case for bail.
In view of the discussions made above, the present application for suspension of sentence succeeds and is liable to be allowed.
It is accordingly Allowed.
Let the applicant/appellant- Faizan Ali be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
It is however provided that the amount of the fine awarded against applicant/appellant 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 the order shall stand cancelled and he shall be taken into custody forthwith to serve out the sentence awarded by Court below.
Order Date :- 25.7.2025
Arshad
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