SC orders POCSO convict to surrender, sets aside HC order suspending sentence

New Delhi, Aug 6 The Supreme Court on Wednesday set aside a Rajasthan High Court order that had suspended the sentence of a man convicted of raping a minor, and directed him to surrender by August 30 before the special Pocso court in the state’s Karauli.

A bench of Justices B.V. Nagarathna and K.V. Viswanathan allowed the appeal filed by the minor victim’s father, holding that the Rajasthan High Court’s reasoning "fell far short of the parameters required for enlarging a convict, punished for a heinous offence, on bail after suspending the sentence".

The convict had been sentenced to 20 years’ rigorous imprisonment and a fine of Rs 50,000 for offences under Section 3/4(2) of the Protection of Children from Sexual Offences (Pocso) Act.

The trial court had relied on the victim’s testimony, corroborated by her parents, and other documents proving her age. It also invoked the statutory presumption under Sections 29 and 30 of the Pocso Act.

Although the forensic report was pending, the trial court held that "the DNA report could only be corroborative in nature" and that its absence did not weaken the prosecution’s case.

However, in September 2024, the Rajasthan High Court suspended the sentence, citing "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", adding that the convict had "strong grounds" to assail the trial court judgment of conviction.

In its judgement, the Supreme Court did not concur with the view taken by the Rajasthan High Court and said: "The finding that no sexual assault was found, without considering the overall nature of the evidence of the case, is completely untenable."

The Justice Nagarathna-led bench stressed that under Section 389 of the CrPC, post-conviction bail should only be granted if there is "something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable".

Further, the apex court took note of the delayed DNA report showing "the presence of male DNA/semen of the accused on the private part and underwear of the victim".

While the top court refrained from commenting on its merits, it said the DNA report underlined the seriousness of the offence and left it open to the prosecution to bring the same on record.

Opining that the Rajasthan High Court "was not justified in suspending the sentence", the Justice Nagarathna-led bench allowed the victim’s father’s appeal and directed the convict to surrender, warning that the state police must take him into custody if he fails to comply. The apex court clarified that it had not examined the merits of the case and that its observations were confined to setting aside the order suspending the sentence.

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