Protection of Children from Sexual Offences Act, 2012 (POCSO Act) – Sections 2(d), 3, 4(2), 29, 30, 42 – Indian Penal Code, 1860 (IPC) – Section 376(3) – Code of Criminal Procedure, 1973 (Cr.P.C.) – Sections 164, 389, 437, 438, 439 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94.
Criminal Appeal – Suspension of Sentence Pending Appeal – Principles Governing.
(2025) 8 SCD 18 : 2025 INSC 935
IN THE SUPREME COURT OF INDIA
CORAM: B.V. Nagarathna, J. and K.V. Viswanathan, J.
CRIMINAL APPEAL NO. OF 2025 (@ SPECIAL LEAVE PETITION (CRL.) NO.69 OF 2025)
The father of the prosecutrix challenged an order of the High Court of Judicature for Rajasthan which suspended the sentence of Respondent No.2 (convict) until the final disposal of his appeal and directed his release on bail. Respondent No.2 had been found guilty under Section 3/4(2) of the POCSO Act and Section 376(3) IPC, and sentenced to 20 years rigorous imprisonment and a fine of Rs. 50,000/- under the POCSO Act. He had undergone 1 year and 3 months of imprisonment.
High Court’s reasons for suspending sentence: The High Court suspended the sentence primarily noting that:
- No sign of sexual assault was found by the medical expert on the prosecutrix’s body.
- No FSL or DNA report was available on record.
- It was “little difficult to digest” that the prosecutrix would go out for toilet despite available washrooms in the house.
- There was no prospect of the appeal being heard and disposed of in the near future, indicating strong grounds for the appellant (convict) to assail the impugned judgment of conviction and sentence.
Trial Court’s findings: The Trial Court had relied on the prosecutrix’s evidence (PW-3), who deposed that Respondent No.2 took her to a house at gunpoint and raped her. Her statement under Section 164 Cr.P.C. also maintained her case. The Trial Court found no material contradictions in the evidence. The victim’s age was determined to be 14 years and 3 months at the time of the incident (DOB 07.03.2009, incident 13.06.2023), confirming her as a child under Section 2(d) of the POCSO Act, based on documentary evidence (admission application, original school record, birth certificate) fulfilling Section 94 of the Juvenile Justice Act. While medical evidence indicated no external visible injury and an old torn healed hymen, with no conclusive opinion given due to awaited FSL report, the Trial Court held that the non-furnishing of FSL/DNA report did not adversely affect the case, as DNA reports are only corroborative. The Trial Court also raised the presumption under Sections 29 and 30 of the POCSO Act.
Supreme Court’s Analysis and Decision: The Supreme Court emphasized that for suspending a sentence under Section 389 Cr.P.C., the High Court must examine whether there is anything “palpable” or “very apparent or gross on the face of the record” to indicate if the accused has a “fair chance of overturning the conviction”. The Court noted the fine distinction between pre-conviction bail (Sections 437, 438, 439 Cr.P.C.) and post-conviction bail (Section 389(1) Cr.P.C.), where the presumption of innocence gets erased upon conviction. The appellate court should not re-appreciate evidence or pick up minor lacunae at this stage.
The Court observed that the High Court failed to advert to relevant factors for considering the suspension of sentence and did not take into account the criminal antecedents of Respondent No.2 (who had 11 cases, 5 acquitted and 6 pending). The Court clarified the distinction between setting aside bail (concerned with the justifiability and soundness of the order) and cancellation of bail (due to supervening circumstances like breach of conditions). While acknowledging the prosecution’s explanation for the delayed FSL report, which now mentions the presence of male DNA/semen, the Supreme Court refrained from commenting on its merits.
The Supreme Court found the High Court’s reasoning to be insufficient and falling “far short of the parameters required under Section 389 of Cr.P.C.” for granting bail to a convict of a heinous offence. Specifically, the High Court’s finding that no sexual assault was found was deemed “completely untenable” as it ignored the strong ocular evidence of the prosecutrix and the fact that medical evidence only stated no conclusive opinion without the FSL report. The reasoning regarding the availability of washrooms was deemed “conjectural”. Applying the principles from Vijay Kumar v. Narendra and Others, which apply equally to POCSO cases, the Court held that the High Court did not consider relevant factors like the nature and gravity of the offence.
Conclusion: The Supreme Court concluded that the High Court was not justified in suspending the sentence. The Court, therefore, set aside the High Court’s order dated 03.09.2024, and directed Respondent No.2 to surrender before the Special Judge (POCSO) Karauli, Rajasthan, on or before 30th August 2025, failing which the State shall take him into custody. The observations made by the Supreme Court were expressly for the purpose of setting aside the suspension order and not on the merits of the appeal.
