Full Text
HIGH COURT OF DELHI
Date of Decision: August 12, 2025
KARTIK .....Appellant
Through: Mr. Adit S. Pujari and Mr. Bhavesh Seth, Advs.
Through: Mr. Aman Usman, APP
Nagar.
Mr. Himanshu Gupta, Adv. (DHCLSC) for the victim
JUDGMENT
In view of the grounds explained in the application, in the interest of justice, the application is allowed and the delay of 61 days in filing the present appeal is condoned.
Application accordingly stands disposed of
1. The present application is filed under Section 430 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, [“BNSS”] seeking suspension of sentence and release of appellant on bail during the pendency of appeal against the Judgement dated 19.09.2024 and Order on Sentence dated 16.10.2024 passed by the learned Additional Sessions Judge (POCSO), South, Saket Courts, New Delhi [“trial court”], whereby the appellant was convicted of offence punishable under section 376(2)(n) IPC and was sentenced to undergo 15 years of RI alongwith fine of Rs. 50,000/- and in default to undergo SI for 5 months. He was also convicted under section 174A IPC and was sentenced to undergo 3 years of RI alongwith fine of Rs. 10,000/- and in default to undergo SI for 30 days.
2. As per the prosecution case, on the complaint of the mother of the victim, FIR No. 0098/2018 was registered at PS Ambedkar Nagar under Section 363 IPC wherein it is alleged that on the date of the incident, the victim- a minor girl aged below 18 years, went missing from her residence and it was suspected that the accused Kartik had enticed her away. 2.[1] During investigation, the prosecutrix was recovered and her statement under Section 164 Cr. P.C. was recorded before the Ld. Metropolitan Magistrate, wherein she narrated that the accused had taken her with him and had subjected her to repeated sexual intercourse against her will on the pretext of marriage. She became pregnant and disclosed it to the appellant who promised to take the prosecutrix to his house and marry her. She further stated that she came to know that the appellant was married to another girl namely “A”. 2.[2] The admission record of the victim was collected from the school, which confirmed that she was minor on the date of the incident. The medical examination of the prosecutrix and appellant was conducted and sealed exhibits, including vaginal swabs, were sent to the Forensic Science Laboratory [FSL] for examination and the FSL report was collected and placed on record.The charge sheet was filed under sections 363/376/174A IPC and Section 6 of POCSO Act. 2.[3] Upon completion of investigation, charges were framed against the appellant under Sections 376(2)(n)/174A IPC and Section 6 read with Section 5(j)(ii) and (l) of the POCSO Act. The prosecution, in support of its case, examined the victim, her relatives, police officials, and expert witnesses, and relied upon medical and forensic evidences to establish the guilt of the accused/appellant.
3. Learned counsel for the appellant submits that the date of birth certificate of the prosecutrix has not been placed on record. The entry related to the date of birth of the prosecutrix is relevant and admissible under Section 35 of the Indian Evidence Act, 1872 but entry regarding age of a person in the school register is not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. 3.[1] There is no document of birth like the birth certificate attached with the school record of the prosecutrix. The date of birth recorded in school record is thus based only on assumption. In these circumstances, the documents on record related to the date of birth of the prosecutrix are not able to prove her date of birth beyond reasonable doubt. It is also submitted that the sister of the prosecutrix had taken time during her cross examination to place on record birth certificate of the prosecutrix. However, despite opportunity, no date of birth certificate was produced before the court. The family of the prosecutrix deliberately concealed the birth certificate of the prosecutrix. Thus, it is not proved beyond doubt that the age of the prosecutrix was less than 18 years at the time of incident. Reliance is placed on Raj Kishore V. State, 2025 SCC Online Del 1303, Shyam Singh V. State, 2025 SCC Online Del 990, State V. Hitesh, 2025 SCC Online Del 962 and Maherban Hasan Babu Khan V. State of Maharashtra and Anr., 2023 SCC Online Bom 1027. 3.[2] It has been next contended that the relationship between the appellant and the prosecutrix was consensual. The victim in her statement under Section 164 Cr. PC stated that she was in a love affair with the appellant and the appellant made physical relations with her with her consent. Drawing the attention of the court to the statement of the prosecutrix (PW-1), the learned counsel submits that the prosecutrix was in a relationship with the appellant for four years. Thus her statement and other material on record does not show that the prosecutrix was forced by the appellant at any point of time for sexual relation. 3.[3] It is further submitted that the appellant has already undergone about 6 years of incarceration. He has maintained good conduct in jail, and belongs to a poor family dependent on him for subsistence, comprising aged parents, a younger brother, and a married sister. It is urged that the hearing of the appeal is not likely to commence in the near future and that the appellant has a strong case with a fair chance of success in appeal, and would suffer irreparable loss if the sentence is not suspended.Conclusively, it is stated that the appellant is willing to abide by the conditions imposed by the Court while allowing his application, including furnishing a reliable surety. On these grounds, suspension of sentence is prayed for.
4. Per contra, learned APP for the State opposes the application, stating that the appellant and prosecutrix were in a relationship since 4 years and that the appellant committed sexual intercourse with the prosecutrix on the false promise of marrying her and made her pregnant. Placing reliance on the FSL report, it is submitted that the appellant is the biological father of the child aborted by the prosecutrix. It is further stated that the statement of PW-2 and certificate of school admission shows that the date of birth of the prosecutrix is 03.03.2000 as is confirmed by the affidavit submitted by the mother of the prosecutrix. 4.[1] It is submitted that the appellant has been convicted and has been awarded a cumulative sentence of RI for 15 years and he has just undergone about 6.[5] years of his sentence. Furthermore, it is submitted that a perusal of the Nominal Roll shows that the appellant has been given numerous punishments which show that his conduct in jail is “unsatisfactory” and that the appellant is involved in another case of similar nature viz. FIR no. 470/2016 registered at PS Ambedkar Nagar under Sections 363/376 IPC and Section 4 of POCSO Act.
5. In rebuttal, the counsel for the appellant has submitted that the victim in Case FIR no. 470/2016 is the friend of the prosecutrix. It is also contended that the prosecutrix wanted to marry the appellant and was in a consensual relationship with him. It is further submitted that affidavit by the parents does not qualify as conclusive proof for determining the age of the victim.
6. It is trite that suspension of sentence under Section 389 of the Code is not a matter of right. The nature, gravity, and impact of the offence on the victim and society are vital considerations. The Supreme Court in Shivani Tyagi v. State of U.P. &Anr., (2024 SCC OnLine SC 842) held that in serious offences, suspension should be the exception, not the rule. The mere fact of incarceration or delay in appeal process cannot justify suspension unless accompanied by an assessment of seriousness and other statutory factors.
7. The Supreme Court in Sonadhar v. State of Chattisgarh, 2021 SCC OnLine SC 3182 and Saudan Singh vs. The State of Uttar Pradesh, 2021 SCC OnLine SC 3259 held that the applications for suspension of sentence may be considered once the appellant has undergone 50% of their sentence prescribed. Perusal of the Nominal roll of the appellant shows that he was sentenced to undergo a cumulative sentence of RI for 15 years and that at present, he has undergone just 6.[5] years of his sentence leaving an unexpired portion of almost 8.[5] years- thereby not completing 50% of his sentence.
8. The rule for determining of age of the child is provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Section provides that the age of the child can be determined by obtaining:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. Thus, as per Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the first preference is to be given to the date of birth certificate issued by the school or the matriculation or equivalent certificate from the concerned examination board, if available. Only if no such certificate regarding age proof is available, the court looks into the birth certificate issued by the Corporation/Municipal Authority/Panchayat. 8.[1] The learned trial court while relying on the age determination rule provided in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, took the view that certificate regarding the date of birth of the victim issued by the Principal of the school mentioning her date of birth gets preference over the certificate issued by the Corporation/Municipal Authority/Panchayat. 8.[2] Dealing with the non-production of birth certificate by the sister of the prosecutrix, the trial court has been of the view that the same does not create any doubt on the documents available on record and as proved by the Principal of the school. 8.[3] Dealing further with the question of age determination, the trial court observed that PW-1 stated on oath that her date of birth was 03.03.2000. No suggestion was given to her during cross examination that her date of birth was not 03.03.2000 or even that she was above 18 years of age at the time when the appellant had established sexual relations with her, which was consensual. Thus, the appellant did not dispute the statement of the prosecutrix that her date of birth was 03.03.2000 and that statement therefore stands unrebutted during trial. 8.[4] The trial court took note that the FIR was registered on 26.02.2018. The prosecutrix stated in her statement under Section 164 Cr.P.C that the appellant had established physical relations in November 2017. Since the victim was 17 years 11 months old on the date of registration of the FIR, her age in 2017 was 17 years and 08 months. The trial court concluded that on the date of registration of the FIR, the prosecutrix was below 18 years of age and was therefore a “child” as per Section 2(1)(d) of POCSO. The consent of minor for physical relation is no consent in the eyes of law.
9. The trial court found the statement of the prosecutrix to be of sterling quality which inspires confidence. The trial court observed that the prosecutrix has consistently stated that the appellant was in relationship with her and wanted to marry her and she had also consented that the appellant had sexual relations with her and that she became pregnant. 9.[1] According to trial court, nothing came in her cross examination that could affect the credibility of her testimony. The victim being a minor, could not have given her consent for marriage or for sexual intercourse. 9.[2] While convicting the appellant, the trial court found that FSL report corroborates the testimony of the prosecutrix inasmuch as, the prosecutrix was found pregnant at the time of her medical examination and the FSL report proves beyond doubt that the appellant was the biological father of the aborted fetus.
10. The Court finds no force in the arguments advanced by the counsel for the appellant. The argument of the counsel for the appellant that his good conduct in jail and the appellant having no past criminal antecedents is totally unfounded as the Nominal Roll clearly indicated the appellant’s jail behaviour as unsatisfactory and his involvement in another FIR of similar nature.
11. During the pendency of the investigation, the appellant did not join the investigation and was declared PO. He was subsequently apprehended and supplementary charge sheet was filed. He has also been convicted under Section 174-A IPC. Thus, the appellant is a flight-risk and therefore possibility that he may abscond if his sentence is suspended, cannot be ruled out.
12. The Supreme Court in Jamnalal Vs. State of Rajasthan &Anr., 2025 INSC 935observed that while deciding an application of suspension of sentence of the accused, the High Court must assess if the convict has a fair chance of acquittal. The relevant paras are reproduced hereinunder:
accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the postconviction stage viz. Sections 437, 438, 439 and 389(1) CrPC.
33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.”
13. In matters involving sexual offences against minor children, the interest of justice demands that such convicts should not be released merely on account of the long pendency of appeal, unless exceptional circumstances are shown. No exceptional or compelling circumstance has been brought to the fore that would warrant suspension of sentence at this stage. The mere fact that the appeal is pending or that the appellant is poor and has to take care of his family, by itself, does not constitute a ground for grant of suspension, particularly in view of the grave nature of the offences.
14. In view of the foregoing and considering the seriousness of the offence and the overall facts and evidences, I do not deem it appropriate to suspend the sentence of the appellant at this stage.
15. The application is accordingly dismissed.
16. Needless to state that any observations made herein are purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on the merits of the case.
17. List in due course.
RAVINDER DUDEJA, J. AUGUST 12, 2025