The appellate court may suspend a sentence pending appeal if there is a patent infirmity in the conviction order that renders it prima facie erroneous, such as significant gaps in identification testimony that raise a reasonable doubt.

CRL.M.(BAIL) 2356/2025

1. The present application under Sections 430 and 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( Section 389 and 482 of the Code of Criminal Procedure, 1973) has been filed seeking suspension of sentence awarded to the applicant/accused in Sessions Case No. 261 of 2018 on the file of the learned Additional Sessions Judge (Fast Track Special Court), South District, Saket Courts, Delhi. The applicant/accused has been found guilty of the offences punishable under Section 376(2) of the Indian Penal Code, 1860 and Sections 5 and 6 of the PoCSO Act. Vide the impugned order on sentence dated 26.08.2023, the appellant has been sentenced to undergo rigorous imprisonment for a period of 14 years along with payment of fine of ₹5,000/-.

2. The learned Senior Counsel appearing on behalf of the appellant/accused draws my attention to the testimony of PW2 as well as PW3, the parents of the victim, who in the chief-in-examination as well as in the cross examination failed to identify the accused. Therefore, pointing to this aspect, it is submitted that despite the non-identification of the accused, the trial court proceeded to convict the accused, which is grossly erroneous. Therefore, it is submitted that the sentence of the appellant/accused may be suspended.

3. Per Contra, it is submitted by the learned Additional Public Prosecutor that PW1 the victim, has clearly identified the accused. My attention was drawn to the medical certificate Ext. PW4/A, where tear in the hymen has been reported. Therefore, it is submitted that it is a clear case of penetrative sexual assault on a child of 04 years of age and this is not a case where the sentence requires to be suspended.

4. Heard both sides.

5. On going through the testimony of PW2 and PW3, the parents of the victim, it is seen that they failed to identify the accused in the chief-in-examination as well as in the cross-examination. According to PW2, the mother, there were 2 to 3 persons, who used to come as drivers of the vehicle in which the child was taken to the school. Therefore, PW2 said that she is unable to identify the person who had actually assaulted her child. No Test Identification Parade (TIP) is seen conducted. It is true that where there is evidence that has been considered by the trial court, it is not open to a Court considering an application for suspension to reassess and/reanalyse the same evidence and take a different view to suspend the execution of the sentence and release the convict on bail. The appellate court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. (See Preet Pal Singh v. State of U.P. , (2020) 8 SCC 645).

6. In the case on hand, the accused has not been identified by the mother of the victim. PW1 initially failed to identify the accused. However, when the question was repeated, she identified the accused. This testimony of PW1 has to be read along with the testimony of her parents. It appears that the appellant/accused has a good arguable case.

7. In view of the aforesaid circumstances, the sentence of the appellant is suspended during the pendency of the appeal on execution a personal bond of ₹50,000/- with two solvent sureties of the like amount each to the satisfaction of the trial court subject to the following conditions:-

(i) The appellant shall provide his mobile number to the Station House Officer concerned, on which he shall remain available during the pendency of the present appeal. In case of change in the number, he shall inform the SHO forthwith.

(ii) In case of change of residential address or contact details, the appellant shall promptly inform the SHO concerned as well as to this Court.

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