1. Appeal against conviction for sexual offences under IPC, POCSO Act, and SC/ST Act based on victim testimony. (Para 1 )
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2026 Supreme(Raj) 572
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
ASHOK KUMAR JAIN, J.
Shiv S/o Ganga – Appellant
Versus
State of Rajasthan – Respondent
S.B. Criminal Misc. 2nd Suspension of Sentence Application No. 1906 of 2025, S.B. Criminal Appeal No. 2108 of 2022
Decided On : 10-03-2026
Advocates Appeared:
For the Appellant : Kapil Gupta
For the Respondent: Rajendra Singh Shekhawat
For the Appellant : Kapil Gupta
For the Respondent: Rajendra Singh Shekhawat
In POCSO cases, the gravity of the offense and the Act's objective prevail over the fact that the child's father turned hostile, provided the victim's testimony remains firm and consistently identifies the accused.
Headnote:(A) Indian Penal Code - Sections 363, 366, 376AB - Protection of Children from Sexual Offences (POCSO) Act - Sections 5(m) and 6 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act - Section 3(2)(va) - Suspension of sentence - Conviction for sexual assault on a child under 12 years of age - Evidence of victim vs. hostile witnesses - Whether suspension of sentence can be granted when the child victim remains firm in testimony despite the father and other witnesses turning hostile - In cases of child sexual abuse, the gravity of the offense and the legislative object to prevent sexual exploitation of children are paramount (Para 6, 9).
(B) Criminal Procedure Code - Section 164 - Evidentiary value of statement recorded by Magistrate - Identification of accused by the victim during trial reinforces the basis for conviction and denial of suspension of sentence (Paras 6, 7).
Facts of the case:
An appellant was convicted under the IPC, POCSO Act, and SC/ST (POA) Act and sentenced to 20 years of imprisonment for sexual assault against a girl child under 12 years of age. The appellant filed a second application for suspension of sentence, arguing that the trial court overlooked contradictions and that the father of the victim turned hostile and entered into a compromise. The appellant had undergone more than six years of custody.
Findings of Court:
The court observed that while the father of the victim turned hostile and attempted a compromise, the victim herself remained firm in her testimony, identified the appellant, and supported the prosecution's case. The evidence recorded by the trial court and the statement under Section 164 Cr.P.C. corroborated the commission of the offense.
Issues: Whether the appellant is entitled to suspension of sentence based on the fact that the informant (father of the victim) turned hostile and the length of custody already undergone.
Ratio Decidendi: The court ruled that considering the gravity of the offense and the specific objective of the POCSO Act to protect children from sexual exploitation, the fact that the father turn hostile or a compromise was entered into does not justify the enlargement of the accused on bail, especially when the victim’s testimony remains consistent and identifying. (Paras 9, 10)
Result: Second application for suspension of sentence is hereby dismissed.
Legal Category Hierarchy
Table of Contents
2. Appellant argued trial court overlooked contradictions and interested witness testimony; father of victim turned hostile. Prosecution opposed. (Para 2 , 3 , 4 )
3. Court noted victim's consistent testimony despite hostile father and witness; victim identified accused in question-answer format. (Para 6 , 7 )
4. Gravity of POCSO Act offences and object to prevent child sexual exploitation outweighs bail consideration despite lengthy custody. (Para 9 , 10 )
5. Second application for suspension of sentence dismissed; appellant not enlarged on bail. (Para 10 )
6. Can the father of the victim turning hostile alone undermine a POCSO conviction?
No, the victim's consistent testimony, especially in a question-answer format, can sustain a conviction despite a hostile parent. (Para 6 , 7 )
7. Is the gravity of the offence a relevant factor in deciding bail under the POCSO Act?
Yes, the object of the POCSO Act to prevent child sexual exploitation is a paramount consideration, and gravity can outweigh length of custody. (Para 9 )
ORDER :
1. Instant second application for suspension of sentence is preferred aggrieved from order of conviction and sentence dated 16.09.2022 in Sessions Case No.57/2020 passed by learned Special Judge (POCSO Act, Cases) No.1, Alwar whereby appellant was convicted for charge under Sections 363, 366, 376AB IPC and Section 5(m)/6 POCSO Act and Section 3(2)(va) SC/ST (POA) Act.
2. Learned counsel for the appellant while relying upon grounds of appeal submitted that without observing principle of law learned trial court has arrived at a conclusion of conviction. He further submitted that learned trial court has overlooked material contradictions and discrepancies, which goes to root of the matter. He further submitted that the entire case of prosecution rests on testimony of interested witness and no independent witness was examined to corroborate the story of prosecution.
3. Learned counsel for petitioner submits that the father of victim has not supported the case of prosecution, rather he turned hostile. He further referred the statement of PW-1 victim and submitted that her statement is not sufficient to draw a conclusion that present petitioner has committed any sexual offense with her. He further referred the questions and submitted that the trial court has suggested certain questions which were answered in affirmative by victim and on the basis of the affirmation present petitioner was convicted. He also submitted that present petitioner is in custody for almost seven years and there is no likelihood that the appeal will be taken up for hearing.
4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. He also informed that complainant victim has already been informed.
5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.
6. First SOS application of present petitioner was considered by this court on 20.07.2023 and while dismissing the first SOS application, we have observed as under:
"As per custody certificate submitted by learned Public Prosecutor, appellant has already remained in custody for more than 3 years and 6 months and even during trial he remained in custody.
PW3 informant-complainant who is father of victim has turned hostile.
Similarly, the person named as “first to know” the incident as named in Ex.P4 was examined as PW2 and he also turned hostile. In report Ex.P4, the name of victim, name of present appellant and also the fact that sexual assault was committed with victim were also mentioned. When we look at statement under Section 164 Cr.P.C. Ex.P1 then the victim was examined on 03.03.2020 wherein she specifically referred certain act and this victim was examined as PW1 before the trial court. Therein, initially she admitted that she was kissed by appellant. Thereafter, she admitted that her cloths were removed firstly she stated that appellant had inserted his finger in her mouth then she admitted insertion of private part of accused in her mouth. The sequence of answer given by PW1 clearly indicated that victim was 12 years of age and examined by a system in question answer format. Moreover, when asked description about the incident then at one point of time she just kept mum and did not answered the question.
In this case, one of the act which is quite noticeable is that admission of PW2 to enter into compromise with appellant and also the father of victim turned hostile but victim remained firm and even she could not speak about the entire incident.
Having considered the entirety of evidence, I am of considered view that in case like this, we all are concerned about sexual abuse of children by perpetrators and this is a fit case to opine that just to stop abuse of children from sexual exploitation etc. the POCSO was enacted by the Parliament of India."
7. No doubt about the fact that father of victim has turned hostile and not supported the case of prosecution, rather his admission indicate that a compromis
