IMPORTANT POINT
Mandatory provisions for protecting the identity of child victims must be strictly adhered to, and convictions should not rely solely on DNA evidence without corroboration.

ORDER :

Anoop Kumar Dhand, J.

Having regard to the sensitivity of the allegations levelled in the matter and the nature of the offence complained of, it is imperative to protect the identity of the prosecutrix. Therefore, she has been denoted as "A" in the incident.

2. Counsel for the appellant submits that though in the Examination-in-Chief, the victim PW-1 "A" has levelled allegation of rape against the appellant, but when she was cross-examined, she denied the allegations of rape against the appellant. Counsel submits that even parents of the victim i.e. PW-2 Ramavtar and PW-3 Gayatri have not supported the allegation of sexual assault against the appellant. Counsel submits that only on the basis of DNA report, the appellant has been convicted. Counsel submits that an accused cannot be convicted solely on the basis of DNA report. In support of his contentions, he has placed reliance upon the judgment passed by the Division Bench of this Court in the case of Ganesh v. State of Rajasthan (D.B. Criminal Appeal No.255/2022) decided on 18.07.2023. Counsel submits that the appellant is in custody since the date of his arrest and disposal of the appeal is bound to take time, therefore, the sentence of the appellant be suspended till disposal of the appeal.

3. Per contra, learned Public Prosecutor as well as the counsel for the complainant opposed the suspension of sentence application.

4. Heard learned counsel for the appellant, learned Public Prosecutor and counsel for the complainant and perused the material available on record.

5. Considering the arguments put forward by counsel for the appellant and looking to the fact that in the cross-examination victim PW-1 "A" has denied the allegation of sexual assault against the appellant and the parents of the victim have not alleged the allegation of rape against the appellant and solely on the basis of DNA report, the appellant has been found to be guilty of the offences and considering the fact that the appellant is in custody since the date of his arrest and looking to the fact that the disposal of the appeal is likely to take time, therefore, this Court is of the opinion that it is a fit case for suspending the substantive sentence awarded to the accused-appellant.

6. Accordingly, the application for suspension of sentence filed by the applicant under Section 389 Cr.P.C. is allowed and the sentence awarded by the Court of Special Judge POCSO Act Cases No.3, Kota vide judgment dated 27.10.2023 in Sessions Case No.68/2023 against the appellant Rohit Bairwa son of Latoor Lal shall remain suspended till final disposal of the aforesaid appeal, subject to the condition that the appellant shall deposit the fine amount, as imposed by the Trial Court and he shall be released on bail provided he executes a personal bond in the sum of Rs. 1,00,000/- with two sureties of Rs. 50,000/- each to the satisfaction of the learned trial Court for appearance before this Court on 15.05.2024 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:-

1. That he shall appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence and mobile number, he will give in writing his changed address and mobile number to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

4. Appellant shall deposit a fine amount as imposed by the learned trial Court.

7. The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-appellant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of c