IMPORTANT POINT
Suspension of sentence and release on bail – There is clear distinction in law between setting aside of bail by a Higher Court and cancellation of bail.

JUDGMENT

K.V. Viswanathan, J.

1. Leave granted.

2. We have heard Mr. K.L. Janjani, learned counsel for the appellant, Ms. Sansriti Pathak, learned Additional Advocate General for the first Respondent - State of Rajasthan, and Mr. Namit Saxena, learned counsel for Respondent No.2.

3. The present Appeal by the father of the prosecutrix challenges Signaturet Nhot Veerif iedorder of the High Court of Judicature for Rajasthan, Bench at Jaipur dated 03.09.2024 in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No. 852 of 2024 in S.B. Criminal Appeal No. 397 of 2024. By the said order, the sentence imposed on Respondent No.2 herein was suspended till the final disposal of the appeal and Respondent No.2 was directed to be released on bail, subject to certain conditions imposed on him by Special Judge (POCSO) Karauli (Rajasthan) by her judgment and order dated 07.02.2024.

4. Respondent No.2 has been found guilty for the offences punishable under Section 3/4 (2) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) as well as under Section 376(3) of the Indian Penal Code, 1860. Respondent No.2 was sentenced under Section 3/4 (2) of POCSO Act and no sentence was imposed under Section 376(3) in view of Section 42 of POCSO Act. Insofar as Section 3/4 (2) of POCSO Act was concerned, Respondent No.2 was sentenced to undergo 20 years rigorous imprisonment and was ordered to pay a fine of Rs. 50,000/-. In default of payment of fine, Respondent No.2 was directed to undergo additional 2 years rigorous imprisonment. Respondent No.2 had undergone imprisonment for a period of 1 year and 3 months after which his sentence was suspended by the High Court.

5. The High Court while suspending the sentence, after setting out the contention of the respective parties, has recorded only the following reasons before enlarging Respondent No.2 on bail:

“5. Upon a consideration of the arguments advanced on behalf of the appellant as well as learned State Counsel and counsel for the complainant and having regard to the facts and circumstances as available on the record and especially the fact that no sign of sexual assault was found by the medical expert on the body of the prosecutrix; no FSL as well as DNA report is available on record; despite the availability of washrooms in the house, it is little difficult to digest that prosecutrix will go out for toilet; there is no prospect of being heard and disposal of this appeal in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the applicant-appellant during pendency of the instant appeal.”

6. The Trial Court, while convicting Respondent No.2, relied on the evidence of prosecutrix PW-3 who had deposed to the following effect: - On 13.06.2023, at 4 PM, when she had gone to the field to defecate, Respondent No.2 came from behind and at gun point after closing her mouth took her to Amro’s house near the dry tank located in the field. Thereafter, the prosecutrix deposed that Respondent No.2 committed rape on her; that she came back and narrated the incident to her mother and other family members; that her father had gone out at that time and he came little while thereafter; that she went with her father to the police station where her father lodged the First Information Report. She also deposed that she was medically examined, and she had given her undergarments and Pajama to the Doctor. The statement under Section 164 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) was recorded earlier where she maintained her case against Respondent No.2. She further deposed that Respondent No.2 had forcibly removed her clothes and laid her on the mattress on the cot on the ground floor of the house.

7. The Trial Court found that no material contradictions had emerged in the evidence. The Trial Court further relied on th