Code of Criminal Procedure, 1973 – s.389 – Protection of Children from Sexual Offences Act, 2012 – s.3/4(2) – Penal Code, 1860 – s.376(3) – Respondent no.2 was found guilty for the offences punishable u/s.3/4(2) of POCSO Act as well as u/s.376(3) of IPC – Respondent no.2 was sentenced u/s.3/4(2) of POCSO Act and no sentence was imposed u/s.376(3) in view of s.42 of POCSO Act – Insofar as s.3/4(2) of POCSO Act was concerned, respondent no.2 was sentenced to undergo 20 years rigorous imprisonment – However, the High Court suspended the sentence of respondent no.2 and enlarged him on bail till the pendency of the appeal – Correctness: Held: 1. The High Court has not adverted to any of the relevant factors for considering the case for suspension u/s.389 and keeping in mind the antecedents of the respondent no.2, this Court is of the opinion that High Court was not justified in suspending the sentence. [Para 12]
2. The reasoning of the High Court, falls far short of the parameters required u/s.389 of CrPC for enlargement of a convict, punished for heinous offence, on bail after suspending the sentence – The finding that no sexual assault was found, without considering the overall nature of the evidence of the case, is completely untenable – According to the evidence of the prosecutrix, respondent no.2, at gunpoint, closed her mouth and forcibly took her to a house and committed rape on her – All that the medical evidence said was that no conclusive opinion about the crime could be given since FSL Report was awaited – That does not mean that the ocular evidence could be ignored – As far as non-availability of FSL Report is concerned, the prosecution has explained the situation and the Trial Court has also found that the non-availability of the DNA Report did not adversely affect the case of the prosecution – The reasoning that despite the availability of washrooms in the house it was difficult to believe that the prosecutrix could go out for the toilet, is conjectural in nature – Therefore, the order of the High Court is set aside and respondent no.2 is directed to surrender before the Court of Special Judge (POCSO). [Paras 16,19] Bail – Distinction between setting aside bail by the a higher Court and cancellation of bail:
Held: There is clear distinction in law between setting aside of the bail by a higher Court and cancellation of the bail – While cancellation of bail is due to some supervening circumstances like breach of bail condition, setting aside of the bail is concerned not with the breach of condition but with the justifiability and soundness of the order granting bail. [Para 13]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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