Correctness Of Finding Regarding Victim’s Age Not To Be Considered U/S.389 CrPC: Supreme Court Sets Aside High Court Order Suspending Sentence Of POCSO Accused

The Appeal before the Apex Court was filed at the instance of the mother of a minor, who was a victim of sexual assault.

The Division Bench comprising Justice Sanjay Karol and Justice Prashant Kumar Mishra said, “Whether or not the finding regarding the age of the victim is correct or not, or the manner in which was sought to be proved before the Trial Court, was in accordance with the law or not, is a question that is open for consideration in the jurisdiction under Section 374 CrPC as may be provided therein, and not under Section 389 CrPC. Casting doubt upon a finding returned by the Court below, when the same isn’t within immediate purview, cannot be justified."

Advocate Shahrukh Alam represented the Appellant while AOR Swati Ghildiyal represented the Respondent.

Factual Background

In this case, an FIR came to be registered under Sections 363, 366 of the Indian Penal Code, 1860 and Section 18 of the Protection of Children from Sexual Offences Act, 2012. After the investigation, the accused person, who is the second Respondent, was convicted by the Trial Court. He approached the High Court seeking suspension of sentence. The Division Bench observed that the age of the victim was 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. The Appeal before the Apex Court was filed against the suspension of sentence awarded to the respondent-accused.

Reasoning

In order to explain the law relating to suspension of sentence under section 389 of the CrPC, the Bench referred to the judgment in K. Prabhakaran v. P. Jayarajan (2005) and said, “When an accused person applies to the Appellate Court for suspension of sentence and succeeds in getting the Court to make an order in his favour, what gets stayed is only the execution of the sentence and nothing more. The sentence remains and is only, not acted upon.” reaffirmed that when an accused person applies to the Appellate Court for suspension of sentence and succeeds in getting the Court to make an order in his favour, only the execution of the sentence gets stayed."

Further, referring to the judgment in State of Haryana v. Hasmat (2007), the Bench affirmed that there has to be a recording of reasons, which, of course, can only be possible after due consideration.

It was noted that the Respondent accused had been convicted by the Trial Court and the victim was a minor. As per the Bench, it was proven that the Respondent accused had committed the offences for which he stood convicted, subject to confirmation or setting aside by the High Court in the pending appeal. In light of such aspects, the Bench held that the High Court ought not to have suspended the sentence as was imposed by the Trial 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”, it held while allowing the appeal.

Cause Title: Lilaben v. State of Gujarat & Anr. (Neutral Citation: 2025 INSC 51)

Appearance:

Appellant: Advocates Shahrukh Alam, AOR Akriti Chaubey, Advocates Shantanu Singh, Katyayani Suhrud

Respondent: AOR Swati Ghildiyal, Advocates Abhipsa Mohanty, AOR Varinder Kumar Sharma, Advocates Shantanu Sharma, Deeksha Gaur

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