[Cites 21, Cited by 0]
Delhi High Court
Faizaan Tak vs The State N.C.T. Of Delhi And Anr on 13 March, 2026
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13.03.2026
+ CRL.A. 1031/2024 and CRL.M.A. 21912/2025 & CRL.M.(BAIL)
232/2026
FAIZAAN TAK .....Appellant
Through: Mr. Abhishek Gupta, Advocate
versus
THE STATE N.C.T. OF DELHI AND ANR .....Respondents
Through: Mr. Utkarsh, APP for the State
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT (ORAL)
CHANDRASEKHARAN SUDHA, J.
CRL.M.(BAIL) 232/2026
1. This application under Section 430(1) read with Section
530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS),
has been filed on behalf of the sole accused in CIS No. 7088/2016
on the file of the Additional Sessions Judge (Special Court - Rape
Cases), South District, Saket Courts, New Delhi, seeking
suspension of sentence. As per the impugned judgment dated
DHAWAN CRL.A. 1031/2024 Page 1
23.07.2024, the accused has been found guilty of offences
punishable under Sections 450 and 376 of the Indian Penal Code,
1860 (IPC). Vide the order on sentence dated 21.09.2024, the
accused has been sentenced to undergo simple imprisonment for a
period of seven years and fine of ₹1,00,000 and in default of
payment of fine, simple imprisonment for one month for the
offence punishable under Section 376 IPC and to simple
imprisonment of one year and fine of ₹1000 and in default of
payment of fine, simple imprisonment for seven days for the
offence punishable under Section 509 IPC. The sentence has been
directed to run concurrently.
2. The prosecution case is that on 01.08.2015, the accused
criminally trespassed into the room of PW1 with the intent to rape
her and subsequently committed rape upon her.
3. It was submitted by the learned counsel for the
appellant/accused that, this was a case of consensual relationship.
PW1 in her cross-examination, admitted that she had shared her
DHAWAN CRL.A. 1031/2024 Page 2
nude photographs and videos with the accused, which indicates the
consensual nature of their relationship. The alleged incident is
stated to have occurred on 01.08.2015, however, the FIR was
registered only on 07.08.2015. The inordinate delay of seven days
has not been explained by the prosecution. PW4, who used to stay
in a room adjoining PW1's room, deposed that on 01.08.2015,
after the incident, she had repeatedly asked PW1 about what had
happened to her. However, PW1 merely cried and did not disclose
any incident of sexual assault. PW-6 and PW-9, the police officers
who first reached the spot on 06.08.2015, deposed that when they
arrived at the scene of the incident, the accused was not present
there. The accused was later called to the spot by the police, after
which he was taken into custody. It was also submitted that PW1
deposed that the bed-sheet had been seized by the police for
forensic examination. However, the FSL report detected semen
that did not match the accused.
3.1. It was further submitted that PW1 was in touch with the
DHAWAN CRL.A. 1031/2024 Page 3
accused between 01.08.2015 and 07.08.2015. Attention was also
drawn to PW1's social media messages to submit that a day prior
to the incident, PW1 had messaged the accused on whatsapp, "see
what happens now. You all will regret. Ab dekh.". It was also
pointed out that after a few hours of the alleged incident, PW1 had
commented "moneysucker" on her friend's social media post,
stating "Comment one word about your ex". Lastly, it was
submitted that the appellant/accused has already undergone
incarceration for a period of 1 year and 11 months out of 7 years
sentence. The appellant has no prior criminal antecedents. Reliance
has been placed on the dictums in Bhagwan Rama Shinde Gosai
& Ors. vs. State of Gujarat (1999) 4 SCC 421, Aasif v. State of
U.P., 2025 SCC OnLine SC 1644 and Rajesh Upadhayay v.
State of Bihar, 2025 SCC OnLine SC 2853.
4. The application is opposed by the learned Additional
Public Prosecutor, who submitted that the arguments advanced by
the learned counsel for the appellant amount to an attempt to
DHAWAN CRL.A. 1031/2024 Page 4
reappreciate the evidence, which cannot be considered at the stage
of suspension of sentence.
5. Heard both sides.
6. In Rajesh Upadhayay (supra), the accused was convicted
for the offence punishable under Sections 302, 342, 149, 147, 148,
504 read with Section 149 IPC along with Section 27 of the Arms
Act, 1959 and were sentenced to life imprisonment. During the
pendency of the criminal appeal, the High Court suspended the
sentence and granted bail to the convicts primarily on the ground
that their role in the incident was only of instigation, and also
observing that there was a delay of three days in forwarding the
FIR to the Magistrate and that the original report had not been
produced. The Apex Court reversed the order of the High Court
while holding that the considerations relied upon by the High
Court were irrelevant and insufficient, especially when the accused
had already been convicted for a serious offence like murder. It
was held that once a conviction is recorded, the presumption of
DHAWAN CRL.A. 1031/2024 Page 5
innocence no longer survives, the appellate court must exercise
great caution while granting suspension of sentence in cases
involving life imprisonment under Section 302 IPC, which should
be granted only in exceptional circumstances. It was further
observed that the High Court should not re-appreciate evidence or
rely on minor procedural aspects at the stage of Section 389
Cr.P.C.
6.1. In Aasif (supra), the appellant was tried for the offences
punishable under Sections 7 and 8 of the Protection of Children
from Sexual Offences Act, 2012, Sections 354, 354kha, 323 and
504 IPC and Section 3(1)(10) of the SC/ST (Prevention of
Atrocities) Act, 1989. He was convicted and sentenced to a
maximum punishment of rigorous imprisonment for a period of
four years. Aggrieved, the appellant preferred an appeal before the
High Court and filed an application under Section 389 Cr.P.C.
seeking suspension of sentence during the pendency of the appeal.
The High Court rejected the application, observing that the offence
DHAWAN CRL.A. 1031/2024 Page 6
was immoral and heinous and that no sufficient ground existed to
release the appellant on bail during the appeal. The Apex Court set
aside the judgment of the High Court and remanded the matter
back for fresh consideration, holding that the case involved a
fixed-term sentence of four years, and in such cases suspension of
sentence should ordinarily be considered liberally unless
exceptional circumstances exist, especially when the appeal is
unlikely to be heard soon. If the appellant remains in jail for most
of the sentence period, the statutory right of appeal would become
meaningless.
6.2. Bhagwan Rama Shinde (supra), the appellants were
convicted by the trial court under Section 392 read with Section
397 IPC and sentenced to rigorous imprisonment for a period of 10
years. They filed an appeal before the High Court and sought
suspension of sentence, but the High Court rejected the request and
also refused their plea for expeditious hearing of the appeal, stating
that older appeals were pending. The Apex Court, reversing the
DHAWAN CRL.A. 1031/2024 Page 7
order of the High Court, held that when a convict is sentenced to a
fixed-term sentence and has filed a statutory appeal, suspension of
sentence should generally be considered liberally unless
exceptional circumstances exist, especially when the appeal cannot
be heard soon.
7. It is well settled that while considering an application for
suspension of sentence, the appellate court is only to examine if
there is such patent infirmity in the order of conviction that renders
it prima facie erroneous. Where there is evidence that has been
considered by the trial court and conclusions arrived at, the
appellate court, while exercising its power for suspension of
sentence, cannot re-assess or re-analyze the same evidence and
take a different view, to suspend the execution of the sentence and
release the convict on bail. (See Preet Pal Singh vs State of U.P.,
(2020) 8 SCC 645 and Omprakash Sahni v. Jai Shankar
Chaudhary, (2023) 6 SCC 123)
8. I was taken through the FIS/FIR as well as the Section 164
DHAWAN CRL.A. 1031/2024 Page 8
statement of PW1. In the 164 statement she has described in detail
the overt acts of the accused. The question whether PW1 has fully
corroborated her earlier statements in her testimony before the
court or whether she is a 'liar, who can never be believed' as
described by the learned defence counsel, is a matter that needs to
considered when the appeal is considered on merits. As far as the
argument on delay is concerned, it is not all delay that is fatal to
the prosecution case. In offences of this nature, there is bound to
be some amount of delay, because in very many cases it is only
after much deliberation by the victim and family members, the
final decision to proceed under law is taken. In the light of the
serious nature of the allegations, the present case is not one where
the discretionary power of this Court to suspend the sentence under
Section 430 BNSS (Section 389 Cr.PC.) needs to be invoked.
However, the appropriate course would be to expedite the hearing
of the appeal.
9. The application is accordingly dismissed.
DHAWAN CRL.A. 1031/2024 Page 9
CRL.A. 1031/2024 and CRL.M.A. 21912/2025
10. List for hearing on 20.04.2026.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 13, 2026
p'ma
DHAWAN CRL.A. 1031/2024 Page 10
