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SUPREME COURT OF INDIA
SANJAY KAROL, PRASHANT KUMAR MISHRA, JJ.
Lilaben – Appellant
Versus
State of Gujarat & Anr. – Respondents
Criminal Appeal No. 2101 of 2025 (Arising out of SLP(Crl) No. 18017 of 2024)
Decided On : 21-04-2025
Criminal Procedure Code, 1973 – Section 389 – Protection of Children from Sexual Offences Act, 2012 – Section 18 – Indian Penal Code, 1860 – Sections 363 and 366 – Sexual assault on minor girl – Conviction – Suspension of sentence – When accused person applies to Appellate Court for suspension of sentence and succeeds in getting Court to make order in his favour, what gets stayed is only execution of sentence and nothing more – Casting doubt upon finding returned by Court below, when same is not within immediate purview, cannot be justified – Till and such time, finding of Trial Court is examined independently by High Court, and proven to be incorrect, it has to be taken as position in law – At present moment, it is proven that Respondent has committed offences for which he stands convicted, subject to confirmation or setting aside by High Court in pending appeal – Considering this, and also nature of offence on one hand, and his age on other, in attending facts and circumstances, High Court ought not to have suspended sentence as was imposed by Trial Court – Respondent directed to surrender before competent authority forthwith, with liberty to approach High Court seeking regular bail. (Paras 7, 8, 9, 10 and 11)
Facts of the case:
Present appeal is at the instance of the mother of a minor, who was a victim of sexual assault in connection with which a First Information Report, under Sections 363, 366 of the Indian Penal Code, 1860 and Section 18 of the Protection of Children from Sexual Offences Act, 2012 was registered. After investigation, accused person was convicted by the Trial Court.
Findings of Court:
Respondent No. 2 is accordingly directed to surrender before the competent authority forthwith. It is clarified that if the appeal pending before the High Court is not heard in eighteen months, he shall be at liberty to approach the High Court seeking regular bail.
Result : Appeal allowed.
JUDGMENT
SANJAY KAROL J.
Leave Granted
2. This appeal is at the instance of the mother of a minor, who was a victim of sexual assault in connection with which a First Information Report, bearing particulars No.11215003220383, PS Anklav, District Anand, under Sections 363, 366 of the Indian Penal Code, 1860 and Section 18 of the Protection of Children from Sexual Offences Act, 20121 [‘POCSO Act’], was registered. After investigation, the accused person, who is Respondent No.2 before this Court, was convicted by the Trial Court2 [Special POCSO Judge and Additional Sessions Judge, Anand at Anand in Sp. POCSO Case No. 66 of 2022]. The sentence handed down to him was as under :
“In the proceedings of Special POCSO case No.66/2022, the Accused Jigresh Kumar alias Jigo Rajubhai Padhiyar, Aged 23 years, Occupation Labour, Residing at Asodar, Udu Faliyu, Taluka Anlav, District Anand is held liable for the guilty of offences punishable under Sections 363, 366(A), 376(3) of the IPC and Section 6 of the POCSO Act in connection with Crime Register No.11215003220383/22, dated 4.8.22 registered with Anklav Police Station under Section 235(1) of the Code of Criminal Procedure.
It is hereby ordered that accused Jigresh Kumar alias Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment for the term of three years and fine of Rs.1,000 (Rupees One Thousand only) for the offence under Section 363 of the I.P. Code under Section 235(2) of the Criminal Procedure Code and in case of failure to pay amount of fine, accuse shall suffer additional simple imprisonment of one month.
It is hereby ordered that accused Jigresh Kumar alias Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment for the term of five years and fine of Rs.2,000 (Rupees Two Thousand only) for the offence under 366(A) of the I.P. Code under Section 235(2) of the Criminal Procedure Code and in case of failure to pay amount of fine, accuse shall suffer additional simple imprisonment for two months.
It is hereby ordered accused Jigresh Kumar alias Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment for the term of 20 years (twenty years) and fine of Rs.5,000 (Rupees Five Thousand only) for the offence under Section 6 of the POCSO Act and in case of failure to pay amount of fine, accused shall suffer additional simple imprisonment for three months.
The accused Jigresh Kumar alias Jigo Rajubhai Padhiyar is hereby ordered to suffer imprisonment concurrently and imprisonment suffered during the trial as Kachcha prisoner is ordered to be set off. ......”
3. He approached the High Court seeking suspension of sentence3 [Criminal Misc Application (for Suspension of Sentence) No. 1 of 2024, in R/Criminal Appeal No. 1434 of 2024]. The Learned Division Bench observed that the age of the victim is in doubt. The records of the Panchayat and the Birth Certificate were produced before the Trial Court; however, the person who produced them, i.e., PW-7, had no personal knowledge thereof, rendering the entry in the register suspect without proof of the source of such information. The sentence was, therefore, suspended pending the outcome of the criminal appeal. He was directed to be released on bail on furnishing bond of Rs. 10,000/- with one surety thereto subject to the satisfaction of the Trial Court and on the condition that he shall not leave India without permission of the High Court; that he shall not enter Village Asodar, Taluka Anklav, District Anand, for a period of two years, and that he shall not change his address. In case he does, it was directed that both the concerned police station and the High Court were to be informed.
4. Aggrieved by the suspension of sentence awarded to Respondent No.2, this appeal has been preferred. The grounds urged are that the facts considered by the High Court that the victim had run away with Respondent No.2 and hence commenced a physical relationship between the two is contrary to the record and the findings of the Trial Court; instead, it is submitted tha
AI
(1) Suspension of sentence – What gets stayed is only execution of sentence and nothing more.(2) Suspension of sentence – Casting doubt upon finding returned by Court below, when same is not within i....
Suspension of sentence granted in light of the applicant's prior relationship with the victim and backlog of appeals, balancing the gravity of the offences with the rights of the accused.
The court determined that the lack of conclusive evidence regarding the victim's age justified the suspension of the applicant's sentence.
The court may suspend a sentence if doubts arise regarding the conviction, particularly concerning the proof of the victim's age and the validity of consent.
The prosecution must prove the victim's age in cases involving sexual offences; failure to do so can lead to suspension of sentence.
The court ruled that insufficient proof of the victim's age justified the suspension of the applicant's sentence under IPC and POCSO Act.
The absence of conclusive proof of the victim's age and the consensual nature of the relationship justified the suspension of the sentence under the POCSO Act.
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