Recently, the Delhi High Court dealt with a high-stakes application seeking suspension of sentence, where the appellant, convicted for rape and aggravated sexual assault under the Indian Penal Code and the POCSO Act, pressed for release during the pendency of his appeal. While examining the scope of appellate intervention at the post-conviction stage, the Court made a pointed observation on the limits of judicial discretion, noting that “once a person is convicted, normally an appellate court will proceed on the basis that such person is guilty as there is no presumption of innocence post-conviction.”
Brief Facts:
The case arose from a criminal prosecution based on an FIR registered in 2018, alleging kidnapping and rape of a minor, which was later taken over by the Central Bureau of Investigation. In December 2019, the District and Sessions Court in Delhi convicted the accused for offences under Section 363, Section 366 and Section 376 of the Indian Penal Code, 1860, read with Section 5(c) and Section 6 of the Protection of Children from Sexual Offences Act, 2012, and sentenced him to imprisonment for the remainder of his natural life, along with fine and compensation. Challenging both the conviction and sentence, the accused approached the High Court and, during the pendency of the appeal, sought suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973.
Contentions of the Appellant:
The Appellant argued that the conviction rested on a flawed appreciation of evidence, particularly concerning the age of the survivor. The Counsel contended that school records relied upon by the prosecution were unreliable, that medical opinions placed the survivor above 18 years of age, and that the appellant had established a credible plea of alibi supported by call detail records. Reliance was placed on precedent to submit that prolonged incarceration and arguable infirmities in the prosecution's case justified suspension of sentence pending appeal.
Contentions of the Appellant:
On the Other hand, the CBI submitted that the appellant stood convicted of grave offences involving sexual assault on a child and that settled law does not permit reappreciation of evidence at the stage of considering suspension of sentence. The Respondent argued that the survivor’s age was conclusively established through admissible documentary evidence and that issues raised by the defence went to the merits of the appeal, not interim relief. Emphasis was placed on the principle that post-conviction, the presumption of innocence no longer operates.
Observation of the Court:
The Court made it clear that appellate intervention at the post-conviction stage is governed by strict judicial discipline, particularly in cases involving serious sexual offences. Emphasising the shift in legal position once a trial court records a conviction, the Bench observed that “once a person is convicted, normally an appellate court will proceed on the basis that such person is guilty as there is no presumption of innocence post-conviction.”
While cautioning against the misuse of Section 389 of the Code of Criminal Procedure, 1973, the Court clarified that an application seeking suspension of sentence cannot be treated as an opportunity to re-examine the evidence or reopen factual findings already returned by the trial court. It noted that questions relating to the age of the survivor, the reliability of school records, medical opinions, and the plea of alibi raised by the appellant are matters that cannot be gone into at the stage of suspension of sentence and must await consideration at the final hearing of the appeal.
The Bench reiterated that “the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach,” as doing so would amount to prejudging the appeal itself.
The Court noted that “a perusal of Section 21 of the IPC shows that the definition of ‘public servant’ does not include a Member of the Legislative Assembly. In this line, the Apex Court in A.R. Antulay has specifically held that an MLA is not covered within the definition of ‘public servant’ under the IPC.”
The Bench observed that “letting the Appellant be in Jail when he has already spent about 7 years and 5 months in jail, would be violative of Article 21 of the Constitution of India.” Emphasising that the length of incarceration is a decisive consideration at the suspension stage, the Court added that “the number of years already undergone in incarceration is a very major factor while considering an application under Section 389 of the Cr.P.C and this Court cannot close its eyes to the fact that the Appellant has already undergone about 7 years and 5 months under incarceration.”
The decision of the Court:
In light of the foregoing discussion, the Court dismissed the application for suspension of sentence, holding that serious convictions under the IPC and POCSO Act cannot be diluted at the interim stage by re-evaluating evidence.
Case Title: Kuldeep Singh Sengar v. Central Bureau of Investigation
Case No.: Criminal Appeal No. 53 of 2020
Coram: Hon’ble Mr. Justice Subramonium Prasad and Hon’ble Mr. Justice Harish Vaidyanathan Shankar
Advocate for the Petitioner: Sr. Advs. N. Hariharan and Manish Vashisht, Advs. SPM Tripathi, Amit Sinha, Deepak Sharma, Rahul Poonia, Ambuj Singh, Ashish Tiwari, Aishwarya Senger, Gaurav Kumar, Saurabh Dwivedi, Punya Rekha, Angara, Vasundhara N, Aman Akhtar, Sana Singh, Vasundhara Raj Tyagi, Arjan Singh Mandla, Gauri Ramachandran, Aishwarya Sengar, Vedansh Vashisht, Swapan Singhal
Advocate for the Respondent: Special Public Prosecutor Anubha Bhardwaj, Advs. Vijay Mishra, Ananya Shamshery, Urvi Mohan, Mehmood Pracha, Sanawar, Jatin Bhatt, Kshtij Singh, Kumail Abbas
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