# Anil Pandey v. State of U.P

- **Citation:** (2023) 11 ILRA 708
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Criminal Appeal No. 994 of 2023
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-pandey-v-state-of-u-p-49394
- **Pages:** 5

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 389(1) ---Court is
duty-bound to objectively assess the matter and
record the reasons for its conclusion for
deciding the application under Section 389(1)
Cr.P.C .--- On perusal of the testimony of PW-1
and PW-2, prima-facie, it transpires that the
testimony are trustworthy and reliable as both
are victims of sexual offence and advances by
same man. And no explanation has been put
forth for the false implication of the accusedappellant except that the complainant and
victim was in relationship, even if it is
presumed, at this stage, the victim was in a
relationship with the accused, it does not give a
licence to the accused to exploit the women for
all time to come and also to have evil eyes on
her young daughter---The complainant had to
withdraw the complaint dated 02.11.2024
lodged at PS Civil Lines, Ballia, under pressure
from the accused and his family members which
shows that the accused wields substantial and
compelling influence in the administration, and
may cause harm to the complainant and her
daughter's safety and security if released on bail
at this stage.

Application for suspension of sentence is
dismissed at this stage.(E-15)

List of the cases referred-:

## Text

708 INDIAN LAW REPORTS ALLAHABAD SERIES
court concerned for serving out the
remaining sentence, awarded to them by
the trial court. The sureties are discharged.

35. Let copy of this judgment
alongwith the lower court record, if any, be
sent to the trial court concerned for further
necessary action and compliance.

----------
(2023) 11 ILRA 708
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 994 of 2023

Anil Pandey. ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Amit Kumar Pandey, Sri Sunil Kumar
Singh

Counsel for the Opposite Party:
G.A., Sri Dharmendra Kumar Chaubey, Sri
Pravin Kumar Tiwari

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 389(1) ---Court is
duty-bound to objectively assess the matter and
record the reasons for its conclusion for
deciding the application under Section 389(1)
Cr.P.C .--- On perusal of the testimony of PW-1
and PW-2, prima-facie, it transpires that the
testimony are trustworthy and reliable as both
are victims of sexual offence and advances by
same man. And no explanation has been put
forth for the false implication of the accusedappellant except that the complainant and
victim was in relationship, even if it is
presumed, at this stage, the victim was in a
relationship with the accused, it does not give a
licence to the accused to exploit the women for
all time to come and also to have evil eyes on
her young daughter---The complainant had to
withdraw the complaint dated 02.11.2024
lodged at PS Civil Lines, Ballia, under pressure
from the accused and his family members which
shows that the accused wields substantial and
compelling influence in the administration, and
may cause harm to the complainant and her
daughter's safety and security if released on bail
at this stage.

Application for suspension of sentence is
dismissed at this stage.(E-15)

List of the cases referred-:

1. Chaman Lal Vs St. of U.P. & anr.2004(7) SCC
525

2. Om Prakash Sahni Vs Jai Shankar Chaudhary
& anr. 2023 SCC OnLine SC 551

3. Rajesh Ranjan Yadav alias Pappu Yadav Vs
CBI (2007) 1 SCC 70

4. Ash Mohammad Vs Shiv Raj Singh alias Lalla
Babu (2012) 9 SCC 446

5. Bhagwan Rama Shinde Gosai Vs St. of
Gujarat (1999) 4 SCC 421

6. St. of Har. Vs Hasmat (2004) 6 SCC 175

(Delivered by Hon'ble Vinod Diwakar, J.)

Crl. Misc. Suspension of Sentence
Application No.1 of 2023

1. I have heard learned counsel for the
appellant,
learned
counsel
for
the
complainant, and learned A.G.A. for the
State on suspension of sentence.

2. The accused-appellant Anil Pandey
has been convicted in Sessions Trial No.13
of 2018 (State vs. Anil Pandey), arising out
of Case Crime No. 88 of 2017, under
Sections 376, 394, 323 and 506 I.P.C.,
Police Station Kotwali, District Ballia, and
has been sentenced to suffer R.I. for ten
11 All. Anil Pandey. Vs. State of U.P.
709
years in respect of offences, mentioned
herein above, apart from fine.

3. As per the prosecution case, on
22.11.2014, the complainant filed a written
complaint to the police stating that the
accused-appellant has been exploiting the
complainant for the last sixteen months.
The accused has taken anklets and other
ornaments after beating the complainant.
The accused had an evil eye on the
complainant's daughter, and when the
complainant and her daughter resisted the
move of the accused, he assaulted and
threatened to defame the complainant's
daughter. It is also an allegation in the FIR
that if the complainant's daughter does not
gratify the sexual impulses of the accusedappellant, he will defame her daughter on
social media and made viral her photos.
When the complainant's daughter did not
succumb to the urge of the accusedappellant, he circulated the inappropriate
pictures by morphing her daughter's image
to her relatives and co-villagers.

4. On these sets of allegations, on
12.01.2017, an FIR bearing Case Crime
No. 88 of 2017, under Section 376, 394,
354, 323 and 506 IPC was registered
against the accused at P.S. Revati, District
Ballia, U.P. The accused was tried for the
aforesaid offences and has been convicted
and sentenced accordingly, apart from fine.

5. Learned counsel for the accusedappellant submits that the victim and
appellant resided together for more than
four years as husband and wife, and the
mobile number of the appellant was also
mentioned in the victim's Aadhar Card and
Ration Card. He further submits that when
the appellant refused to fulfil the demand
for money of the complainant, she falsely
implicated the accused. The submission is
that the appellant was on regular bail
during the trial. Therefore, the accusedappellant be enlarged on bail.

6. The counsel further submits that
the accused-appellants name has been
mentioned as guardian in the admission
form of complainant's daughter, which
shows that the accused has consensual
relationship with the complainant since
long. The case is registered with the
oblique motive to falsely implicate the
accused on the basis of concocted story
which is apparent from the testimony of
PW-1 and PW-2. There are material
contradictions and improvements in the
testimony of PW-2, who is daughter of the
complainant.

7. Be that as it may, the detailed
examination of the merits of the case may
not be required by the courts while
considering the application for suspension
of sentence, but at the same time, the
exercise of discretion has to be based on
well-settled principles and in a judicious
manner, and not as a matter of course as
held by Apex Court in Chaman Lal v. State
of U.P. and Anr1.

8. The principles which must guide
the suspension of sentence in a rape
case have been reiterated in several
decisions of Apex Court. I may refer to
Om Prakash Sahni v. Jai Shankar
Chaudhary and Another 2, wherein
while referring to series of judgments
passed
by
the
Apex
Court
on
suspension of sentence, His Lordship
has referred to Rajesh Ranjan Yadav
alias Pappu Yadav v. CBI3, Ash
Mohammad v. Shiv Raj Singh alias
Lalla Babu4, Bhagwan Rama Shinde
Gosai v. State of Gujarat5, and has
held as follows:-
710 INDIAN LAW REPORTS ALLAHABAD SERIES

"3. When a convicted person is
sentenced to a fixed period of sentence and
when he files an appeal under any statutory
right, suspension of sentence can be
considered by the appellate court liberally
unless there are exceptional circumstances.
Of course, if there is any statutory
restriction against suspension of sentence it
is a different matter. Similarly, when the
sentence
is
life
imprisonment
the
consideration for suspension of sentence
could be of a different approach.

9. In State of Haryana v. Hasmat6
the Apex Court stated as under:-

"6. Section 389 of the Code deals
with suspension of execution of sentence
pending the appeal and release of the
applicant on bail. There is a distinction
between bail and suspension of sentence.
One of the essential ingredients of Section
389 is the requirement for the appellate
court to record reasons in writing for
ordering suspension of execution of the
sentence or order appealed. If he is in
confinement, the said court can direct that
he be released on bail or on his own bond.
The requirement of recording reasons in
writing clearly indicates that there has to
be careful consideration of the relevant
aspects and the order directing suspension
of sentence and grant of bail should not be
passed as a matter of routine.

(emphasis supplied)"

10. The mere fact that during the
period of trial, the accused was on bail and
there was no misuse of liberty, does not per
se warrants suspension of execution of
sentence and grant of bail. What is really
necessary is to consider whether reasons
exist to suspend execution of the sentence
and grant of bail.

11. At this stage, I refer to the
decision of the two-Judge Bench of Apex
Court
in
Omprakash
Sahni's
case
(supra),
where
His
Lordship
J.B.
Pardiwala, J., speaking for the Court,
observed as follows:

"22. Thus, when we speak of
suspension of sentence after conviction, the
idea is to defer or postpone the execution of
the sentence. The purpose of postponement
of sentence cannot be achieved by
detaining the convict in jail; hence, as a
natural consequence of postponement of
execution, the convict may be enlarged on
bail till further orders.

23. The principle underlying the
theory of criminal jurisprudence in our
country is that an accused is presumed to
be innocent till he is held guilty by a court
of the competent jurisdiction. Once the
accused is held guilty, the presumption of
innocence gets erased. In the same manner,
if the accused is acquitted, then the
presumption of innocence gets further
fortified.

24. From perusal of Section 389
of the CrPC, it is evident that save and
except the matter falling under the category
of sub-section 3 neither any specific
principle of law is laid down nor any
criteria has been fixed for consideration of
the prayer of the convict and further,
having a judgment of conviction erasing
the presumption leaning in favour of the
accused regarding innocence till contrary
recorded by the Court of the competent
jurisdiction,
and
in
the
aforesaid
background, there happens to be a fine
distinction between the prayer for bail at
the pre-conviction as well as the postconviction stage, viz Sections 437, 438,
439 and 389(1) of the CrPC."
11 All. Anil Pandey. Vs. State of U.P.
711

12. This Court is duty-bound to
objectively assess the matter and record the
reasons for its conclusion for deciding the
application under Section 389(1) Cr.P.C .

13. Returning back to the case in
hand, the complainant was examined as
PW-1, and her daughter was examined as
PW-2. The complainant stated that the
accused had exploited her for sixteen
months. She was mentally and physically
tortured and faced regular beating and
humiliating incidents. The accused used to
say that he had made a video of her and
would circulate it on the internet if she
would not satisfy his lust. On many
occasions,
the
accused
made
the
complainant naked in front of her daughter
and son. The accused occasionally does
dirty talks with the complainant's daughter
and, on a few occasions, attempted to rape
her. The accused circulated morphed
pictures of the complainant's daughter
among her relatives and co-villagers. Three
hundred such pamphlets were circulated.
The complainant had lodged a complaint
on 22.11.2014 at P.S. Civil Lines against
such an aggravated move of the accused,
but the same was withdrawn under the
pressure of the accused's relative and
fearing her safety and security. The same is
exhibited as Ex. 4 Kha/5. The police had
conducted the complainant's medical, and
her statement under Section 161 Cr.P.C.
was also recorded regarding the complaint
dated 22.11.2014; even after that, the
complainant
had
to
withdraw
the
complainant under pressure from the
accused-appellant.

14. The complainant's daughter was
also examined as PW-2. She has supported
the prosecution's case. The witness stated
that the accused used to beat her mother
mercilessly, and also had an evil eye on
her. When her mother resisted such a move
by the accused, she was abused and beaten.
Her morphed pictures were also circulated
amongst her relatives and co-villagers.

15. The Court is also conscious of the
fact that the women hesitate to register a
rape case against her paramour in Indian
society because of fear of social stigma.
The victim may fear being judged,
ostracized, or blamed by their family,
friends or community members. This fear
of social stigma can discourage women for
reporting sexual crime, particularly if the
perpetrator is someone known intimately.

16. There is also fear of retaliation in
the mind of the victim. The victims may
fear reprisals or threats from the perpetrator
or their associates if they report that kind.
This fear can be heightened when the
perpetrator is someone they have closed
relationship with, such as a partner or
paramour. The women who report rape or
sexual assault may fear retaliation from the
perpetrator, the family, or their community.
This can include threats, violence or social
isolation.

17. Many sexual offence cases go
under reporting due to fear of social stigma,
victim-blaming, and the perception that
reporting may bring same bad name upon
the victim and their family. This leads to a
significant number of cases not being
registered, which naturally affects the over
all conviction rate.

18. After hearing the counsel for the
parties and on perusal of the record, I am of
the view that :

18.1 Even though the minute
examination of evidence and detailed
documentation of the case's merit is not
712 INDIAN LAW REPORTS ALLAHABAD SERIES
warranted at this stage. Still, this court is
duty bound to objectively assess the matter
and record the reasons on its conclusion for
deciding the application for suspension of
sentence.

18.2 On perusal of the testimony
of PW-1 and PW-2, prima-facie, it
transpires that the testimony of PW-1 and
PW-2 are trustworthy and reliable as both
are victims of sexual offence and advances
by same man. And no explanation has been
put forth for the false implication of the
accused-appellant
except
that
the
complainant and victim was in relationship,
even if it is presumed, at this stage, the
victim was in a relationship with the
accused, it does not give a licence to the
accused to exploit the women for all time
to come and also to have evil eyes on her
young daughter.

18.3 The complainant had to
withdraw the complaint dated 02.11.2024
lodged at PS Civil Lines, Ballia, under
pressure from the accused-appellants and
his family members. This shows that the
accused wields substantial and compelling
influence in the administration, and may
cause harm to the complainant and her
daughter's safety and security if released on
bail at this stage.

18.4 On perusal of the custody
certificate of the accused-appellant, it
reflects that the accused has undergone
custody of only 153 days till 07.05.2023,
even though he has been awarded a
maximum sentence of ten years along with
lesser sentences, apart from fine.

18.5 The accused-appellant is not
a man of the clean antecedent. A Case
Crime No. 0057 of 2020 P.S. Kotwali,
District Ballia, under Section 419 and 422
IPC has been registered against the
accused-appellant.

19. For the reasons detailed above, the
application for suspension of sentence is
dismissed at this stage.

20. While concluding, however, I
hasten to add that my observations are
confined to the question as to whether a
case of suspension of sentence are made
out or not and shall not affect the merit of
the case when the appeal comes up for
hearing before this Court.

21. If the appeal is not listed for final
hearing after a year, the prayer for suspension of
sentence may be revived, afresh and shall be
decided on merits of the case.

22. List the appeal for hearing at the
earliest.
----------
(2023) 11 ILRA 712
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1284 of 2002

Ali Hasan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
R.P. Dwivedi

Counsel for the Opposite Party:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction
under
Section
20B(ii)B
of
N.D.P.S.
Act
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-