Suspension of sentence pending appeal sits at the intersection of two pressures: appeals against conviction take years, yet the conviction stands until set aside. The Jharkhand High Court's order of 18 September 2026 in Chotka Gope v. State of Jharkhand draws the line for the gravest category. The appellant, convicted with a co-accused for the gang rape and murder of a minor girl during a village festival in 2015, argued that ten and a half years in custody entitled him to suspension of sentence. A Division Bench disagreed — in a murder conviction, it is only the exceptional case that earns release pending appeal, and lapse of time is not that exception.
The conviction under appeal
The case arose from a village festival in 2015. The victim, a minor girl, was seen by her younger sister being taken away by the accused. Her body was recovered soon after with a rope around the neck and her undergarment lying nearby. There was a history: the accused had earlier been reprimanded by the community for inappropriate conduct towards the victim. The trial court convicted two accused under Sections 376D read with 511 and 302 read with 34 of the IPC, along with Sections 4, 8 and 18 of the POCSO Act, sentencing them to life imprisonment. Their appeal is pending before the High Court.
The suspension application
This was the appellant's second attempt at suspension of sentence, made under Section 389(1) of the BNSS. The central plank was arithmetic: ten and a half years already served. The Division Bench dismissed the application, holding that in cases involving conviction under Section 302 IPC it is only in exceptional cases that the benefit of suspension of sentence can be granted — and the mere passage of time does not create the exception.
Three strands of the Court's reasoning
The threshold for murder convictions
Post-conviction, the presumption of innocence has been displaced by a judicial finding. For offences of this gravity, release pending appeal demands something exceptional — a conviction that appears unsustainable on its face, or circumstances truly out of the ordinary.
No mini-appeal at the suspension stage
The appellant invited the Court to re-examine the circumstantial evidence — the last-seen testimony, the recovery, the absence of forensic proof of rape. The Bench declined: reappreciation of evidence is the appeal's function, not the suspension application's.
The POCSO presumptions
Section 29 of the POCSO Act raises a mandatory presumption against the accused once the foundational facts are shown, and Section 106 of the Evidence Act required the accused to explain their whereabouts. Their failure to do so fortified the conviction at this threshold view.
The custody-length argument in perspective
Length of incarceration is not irrelevant — it is the principal engine of suspension orders in mid-range convictions, and even in grave cases an appeal that cannot be heard for many years despite the appellant's readiness can shift the balance. But the argument works as part of a matrix, not as a standalone entitlement. Where the underlying evidence is strong, the offence is against a child, and the appeal can be expedited instead, courts prefer to fix the hearing rather than open the gates. That is the structure of this order: the remedy for a long-pending appeal is a hearing, not automatic liberty.
Practical notes for appeal-stage practice
Build the suspension application around the judgment's weaknesses, not the calendar — identify the specific findings that appear legally unsustainable.
Where custody length is the best point, pair it with the state of the appeal: paper-books ready, no adjournments sought, and a prayer for expedited hearing in the alternative.
In POCSO appeals, confront the Section 29 presumption directly; applications that ignore it invite exactly the reasoning recorded here.
A dismissed application is not the end — a genuinely changed circumstance later (health, extraordinary delay not attributable to the appellant) can found a fresh plea.
The Delhi angle
The Delhi High Court applies the same calculus to suspension applications in POCSO and murder appeals: exceptional-case scrutiny for the gravest convictions, no reappreciation of evidence at the interim stage, and a preference for expediting hearings over releasing convicts. For advocates advising families after a conviction, this order is a realistic benchmark of what Section 389(1) BNSS can and cannot deliver.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What is suspension of sentence under Section 389(1) BNSS?
It is the appellate court's power to suspend execution of a sentence — and release the appellant on bail — while the appeal against conviction is pending. It corresponds to Section 389(1) CrPC. For serious convictions, courts require more than delay: they look at the nature of the offence, the evidence underlying the conviction and the appellant's conduct.
Why was the second application rejected?
The Bench held that in convictions under Section 302 IPC it is only in exceptional cases that suspension can be granted, and that the mere passage of time in custody — ten and a half years — did not constitute such an exception. The Court also declined to reappreciate evidence at the suspension stage, noting the circumstantial chain and the statutory presumptions under Section 29 of the POCSO Act.
What was the evidence supporting the conviction?
The victim was last seen being taken away by the accused, witnessed by her younger sister; her body was found shortly thereafter with a rope around the neck; and the accused offered no explanation of their whereabouts, a factor the Court weighed under Section 106 of the Evidence Act. The convictions were under Sections 376D/511 and 302/34 IPC with Sections 4, 8 and 18 of the POCSO Act.
Is a successive suspension application maintainable?
Yes, a second application is not barred, but it must show a change in circumstances — for instance, the appeal becoming ready but unheard for an extraordinary period through no fault of the appellant, or supervening health grounds. Repetition of the earlier plea with an updated custody figure ordinarily fails, as it did here.