Summary
On the appeal of the prosecutrix's father, the Supreme Court set aside a High Court order suspending the twenty-year sentence of a man convicted under Section 4(2) of the POCSO Act and Section 376(3) IPC. The High Court's reasons (no sign of sexual assault, absent FSL/DNA report, doubt that the girl would go out to the field) fell far short of the parameters of Section 389 CrPC, ignored the ocular evidence and the convict's antecedents, and rested on conjecture; the convict was directed to surrender.
Issues
- Whether the High Court was justified under Section 389 CrPC in suspending the sentence of a convict under the POCSO Act and Section 376(3) IPC on the reasons it recorded.
- Whether the absence of any post-bail misconduct is an answer to a challenge to the soundness of an order suspending sentence, and how setting aside of bail differs from cancellation of bail.
- Whether the absence of an FSL/DNA report at trial and a medical report recording no visible injury justified suspension of sentence.
Provisions considered
- Section 389, Code of Criminal Procedure, 1973A court hearing an application under Section 389 for suspension of sentence after conviction for a heinous offence must examine, without re-appreciating evidence, whether there is anything palpable on record showing that the convict has a fair chance of overturning the conviction (Omprakash Sahni). The High Court's reasoning did not advert to the relevant factors and fell short of these parameters. (¶¶ 10, 12, 15, 16, 17)
- Sections 3/4(2), 29, 30 and 42, Protection of Children from Sexual Offences Act, 2012Respondent No. 2 was convicted under Section 3/4(2) and sentenced to twenty years' rigorous imprisonment with fine; no separate sentence was imposed under Section 376(3) IPC in view of Section 42. The trial court had raised the presumptions under Sections 29 and 30. The Court noted these findings while assessing whether suspension of sentence was warranted. (¶¶ 4, 9)
- Section 376(3), Indian Penal Code, 1860Respondent No. 2 was also found guilty under Section 376(3); by virtue of Section 42 of the POCSO Act the sentence was imposed only under the POCSO Act. (¶ 4)
Held
- At the stage of Section 389 CrPC, the court must examine whether prima facie there is something palpable on record indicating that the accused has a fair chance of overturning the conviction; it should not re-appreciate the evidence to pick out lacunae in the prosecution case. (¶ 10)
- The High Court did not advert to any of the relevant factors for suspension under Section 389 and ignored the convict's antecedents (eleven cases, of which five ended in acquittal and six were pending); independent of the FSL and DNA report, having regard to the nature of the case, the antecedents and the judgment of conviction, the suspension was not justified. (¶¶ 11, 12, 15)
- There is a clear distinction between setting aside of bail by a higher court and cancellation of bail: cancellation rests on supervening circumstances such as breach of conditions, whereas setting aside concerns the justifiability and soundness of the order granting bail. The absence of post-bail misconduct is therefore no answer to a challenge to the order. (¶ 13)
- The High Court's finding that no sexual assault was found, recorded without considering the overall evidence including the prosecutrix's testimony of rape at gunpoint, was untenable; the medical evidence only said that no conclusive opinion could be given pending the FSL report, which did not mean the ocular evidence could be ignored. The non-availability of the FSL report was explained by the prosecution and the trial court found that it did not affect the case, and the reasoning that the girl would not go out to the field despite washrooms at home was conjectural. (¶ 16)
- The factors identified in Vijay Kumar v. Narendra for bail pending appeal in a murder case (nature of accusation, manner of commission, gravity of the offence and desirability of releasing a convicted person) apply with equal force to a case under the POCSO Act. (¶ 17)
- The Court declined to comment on the merits of the FSL report received after trial, leaving the prosecution free to bring it on record by any legally permissible procedure, and clarified that its observations were only for the purpose of setting aside the suspension order. (¶¶ 14, 18)
Result
Appeal allowed; High Court order dated 03.09.2024 suspending sentence set aside; Respondent No. 2 directed to surrender before the Special Judge (POCSO), Karauli on or before 30 August 2025, failing which the State shall take him into custody.