Suspension of sentence under Section 389 CrPC is warranted if there is a substantial possibility of acquittal and if prolonged incarceration during the pendency of an appeal, not attributable to the convict, threatens personal liberty and human dignity.

(Through Video Conferencing)

Order

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 07.01.2021 passed by the learned Special Court, POCSO Act, 2012, Ajmer in Sessions Case No. 33/2019 whereby he was convicted and sentenced to suffer maximum imprisonment of ten years’ rigorous imprisonment along with a fine of Rs.10,000/-, in default of payment of fine to further undergo two months’ simple imprisonment, for the offences under Section 377 IPC and Section 5(M)/6 of the Protection of Children from Sexual Offences Act, 2012, and further sentenced to seven years’ rigorous imprisonment with a fine of Rs.5,000/-, in default to further undergo one month’s simple imprisonment, for the offence under Section 363 IPC, and to one year’s rigorous imprisonment with a fine of Rs.1,000/-, in default to further undergo fifteen days’ simple imprisonment, for the offence under Section 342 IPC.

2. It is contended by the learned counsel for the appellant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court.

3. Per contra, learned public prosecutor has vehemently opposed the prayer made by learned counsel for the accused-applicant for releasing the appellant on application for suspension of sentence.

4. Heard learned counsel for the parties and perused the material available on record.

5. There exists a fine yet significant distinction between the grant of bail under Section 439 of the Code of Criminal Procedure, 1973, and the suspension of sentence under Section 389 CrPC. While the power exercised under Section 439 CrPC is essentially discretionary in nature and operates at the pre-conviction stage, the jurisdiction under Section 389 CrPC, though also discretionary, is qualitatively different and operates post-conviction. Under Section 389 CrPC, the appellate court is vested with a distinct authority; however, the core consideration before the appellate forum must necessarily be whether the judgment of conviction and the consequent order of sentence are sustainable in the eyes of law.

6. It is trite that the presumption of innocence, which enures in favour of an accused, comes to an end upon conviction. Consequently, while considering an application under Section 389 CrPC, the appellate court is required to examine the grounds raised in the appeal, and for such purpose, the oral and documentary evidence must be looked into. Where, upon appreciation of evidence, it appears that the conclusions drawn by the trial court may be erroneous, and where logical, legal and sustainable arguments are advanced assailing the findings, disclosing a strong and arguable case, the appellate court is duty-bound to consider such contentions.

7. Where the sustainability of the conviction itself becomes debatable, and where the grounds raised in appeal, if adjudicated in favour of the appellant, disclose a real and substantial possibility of success, and where, prima facie, it appears that the conviction may be reversed and the appellant may be acquitted, the appellate court ought to suspend the sentence pending disposal of the appeal.

8. Such discretion deserves to be exercised with greater circumspection in cases where the appellate forum has sufficient reason to believe that the appeal is not likely to be taken up for hearing in the near future. In such circumstances, the court is required to assess whether the gro