ORDER :

ANIL KUMAR UPMAN, J.

1. Heard learned counsel for the appellant-applicant as well as learned Public Prosecutor and perused the material available on record.

2. The appellant-applicant herein has been convicted for offences punishable under Sections 363, 201 & 384 of IPC and Section 5l/6 of Protection of Children from Sexual Offences Act, 2012 vide judgment dated 30.01.2024 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012, No.2, Jaipur Metropolitan-I in Sessions Case No.14/2022 (CIS No.62/2022) and has been sentenced vide order dated 31.01.2024 to maximum punishment of 20 years.

3. First application filed on behalf of appellant-applicant for suspension of execution of sentence was dismissed as withdrawn by this Court vide order dated 08.10.2024. Now, this second application for suspension of execution of sentence has been preferred on behalf of appellant-applicant.

4. Learned counsel for the appellant-applicant submits that learned trial Court has erred in convicting and sentencing the applicant as mentioned above. Learned trial Court has not appreciated the evidence in right and correct perspective. Counsel submits that there is no evidence available on record suggesting the fact that at the time of alleged incident, victim was minor. Counsel submits that admittedly, FIR was registered against one Rakesh Mahawar and without any test identification parade, arrest of the appellant-applicant was made. Counsel submits that there is no document or evidence available on record showing the fact that appellant-applicant is “Rakesh Mahawar”. Counsel submits that appellant-applicant is “Vimal Mahawar” and during the course of trial, also prosecution failed to establish the identity of appellant- applicant. Counsel submits that appellant-applicant is in custody for more than last four years and there is no immediate prospect of being heard and disposed of this appeal in near future. Reliance has been placed on the ratio laid down by Hon’ble Supreme Court in case of Bhagwan Ram Shinde and Others v. State Of Gujarat, reported in (1999) 4 SCC 421, wherein, it has been held that when a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances, therefore, second application for suspension of execution of sentence may be considered liberally.

5. Learned State Counsel vehemently opposes the submissions made by learned counsel for appellant-applicant. He submits that there are constant allegations against the appellant-applicant of commission of sexual intercourse with the minor against her will. He submits that the allegations levelled by the victim are further corroborated by the DNA report, according to which male DNA has been found in the vaginal swab of the victim. He relies upon the judgment passed on 06.08.2025 by Hon’ble Supreme Court in the case of Jamnalal vs. State of Rajasthan & Anr. in SLP (Crl) No.69 of 2025 wherein it has been observed that in any case of fair chance of acquittal, application for suspension of sentence can be considered. He further submits that victim/complainant has duly been informed about hearing of this second application for suspension of execution of sentence.

6. Despite information, no one has put in appearance on behalf of victim/complainant.

7. Heard learned counsel for the appellant-applicant and learned Public Prosecutor. Perused the material available on record.

8. First application for suspension of execution of sentence was dismissed as withdrawn by this Court vide order dated 08.10.2024 and thereafter, there is no material change in circumstances and merely on the basis of period of incarceration, applicant does not become entitled to get his sentence suspended, particularly, when no efforts on behalf of the applicant are appearing on record to get this appeal listed for final hearing. While setti