IMPORTANT POINT
The court allowed the suspension of sentence pending appeal due to significant inconsistencies in the evidence against the appellant, indicating strong grounds for appeal.

JUDGMENT :

Dinesh Mehta, J.

1. The appellant-convict Babulal @ Babliya has moved the present application under Section 389 of the Code of Criminal Procedure for suspension of sentence during the pendency of the appeal. Vide judgment dated 31.7.2023 passed by the learned Special Judge, POCSO Act Cases, Churu in Sessions Case No. 21/2021, appellant stands convicted and sentenced as mentioned below:

2. All the sentences were ordered to run concurrently.

3. According to prosecution's narrative, on 17.2.2021 complainant Babulal's daughter, Miss “D” aged about 6 years, returned home with a bite mark near her lip with blood present. When asked, Miss “D” stated to her father that Babliya had taken her away, opened her pajama, fall upon her and bit her on the cheek. The conviction of appellant primarily rests on the testimony of victim.

4. Learned Public Prosecutor has filed reply to the application indicating that the applicant has already undergone more than 3 years of imprisonment excluding remissions.

5. Plea for suspension of sentence and release of appellant on bail pending appeal raised by Shri. Nishant Bora, learned Counsel appearing for the appellant, emanates from his criticism of the impugned judgment of conviction on various counts. To begin with, he contended that findings recorded by the learned Trial Court in respect of aggravated penetrative sexual assault with victim are based on conjecture and surmises rather than on evidence. Referring to the record, it was contended that the first information report was completely silent regarding aggravated penetrative sexual assault with victim because the victim did not disclose any such fact to her father. Such a fact was also not disclosed in the statements recorded under Sections 161 and 164 of the Cr.P.C. as well as the statements of the victim recorded during the trial therefore, if aggravated penetrative sexual assault had happened with her, she would have definitely stated about the injury on her genital part or pain or bleeding there.

6. It is argued that even in the injury report of the victim, no injury was found on her genital parts. In medical examination of victim, her hymen was also found intact and semen was also not found on the private parts of the victim but was found on her clothes. It is further argued that for this reason, the first investigating officer has considered only the charge of sexual assault i.e. Section 7/8 of the POCSO Act as proved, against the appellant. It is further argued that solely based on the DNA report, the second investigating officer considered the offence of aggravated penetrative sexual assault as proved and filed the charge sheet.

7. His further contention is that there was no evidence on record to support the case of the prosecution that the ingredients of the offence under Section 5/6 of the POCSO Act has been proved; that even if the evidence of victim is accepted literally as true, the case does not travel beyond offence under Section 18 of the POCSO Act; that hearing of the appeal is likely to take time, therefore, sentences awarded to the applicant appellant deserves to be suspended during pendency of the appeal. On these grounds he implored the Court to accept the application for suspension of sentences and enlarge the appellant on bail.

8. Opposing the appli