Supreme Court Sets Aside High Court's Suspension Of POCSO Convict's Sentence, Directs Surrender

A bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan heard an appeal filed by the father of the prosecutrix challenging the Rajasthan High Court's order of 3 September 2024 which had suspended the sentence of Respondent No.2 and enlarged him on bail pending appeal. The appeal concerned conviction under Section 3/4(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) (with consequential non-imposition of sentence under Section 376(3) IPC by reason of Section 42 POCSO), and the correctness of the High Court's exercise of powers under Section 389 Cr.P.C.

The Supreme Court allowed the appeal, set aside the High Court order and directed Respondent No.2 to surrender to the Special Judge (POCSO), Karauli, on or before 30 August 2025. The Court found that the High Court had not applied the correct parameters required under Section 389 Cr.P.C. before suspending a sentence awarded for a grievous POCSO offence and relied improperly on selective aspects of the record. The Court, in its reasoning, observed: “The reasoning of the High Court, set out above, falls far short of the parameters required under Section 389 of Cr.P.C. for enlargement of a convict, punished for heinous offence, on bail after suspending the sentence. The finding that no sexual assault was found, without considering the overall nature of the evidence of the case, is completely untenable.” The Court noted that the High Court's remark that “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” could not justify suspension in the face of the trial court's appreciation of ocular evidence and documentary proof of age.

Background The trial court convicted Respondent No.2 on the basis of the prosecutrix's testimony (PW‑3) that on 13 June 2023, at gunpoint, he took her to a nearby house and committed rape. The prosecutrix recounted the incident to family members and a First Information Report was lodged. Documentary evidence (school admission form, school register and birth certificate) established the victim's date of birth as 7 March 2009, making her 14 years and 3 months at the time of the incident; the trial court applied Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and found her to be a child within the meaning of Section 2(d) POCSO. Medical examination showed no external injuries and a hymen in an old torn healed state; the FSL/DNA report was not available at trial and, while the trial court held DNA would be corroborative, it drew adverse inferences in the light of ocular testimony and statutory presumptions under Sections 29 and 30 POCSO.

The High Court suspended the sentence while observing, inter alia, that no sign of sexual assault was found by the medical expert, no FSL/DNA report was on record and that it was “little difficult to digest that prosecutrix will go out for toilet” despite availability of washrooms. The Supreme Court held that such reasoning involved conjecture and did not address whether there was “something palpable” on record indicating a fair chance of acquittal, as required by precedents on Section 389 Cr.P.C. The Court also considered the criminal antecedents placed on record for Respondent No.2 (11 FIRs shown, five earlier acquittals and six pending matters) and observed that the High Court had not adverted to relevant factors before granting suspension. The Court left the question of the FSL/DNA report to the prosecution to place on record through legally permissible procedures, clarified that its observations were confined to the bail order, and emphasised the distinction between setting aside bail and cancellation in appropriate cases. The appeal was allowed and the suspension order was set aside.

Case No.: 2025 INSC 935 Case Title: Jamnalal v. State of Rajasthan and Another Appearances: For the Petitioner(s): Mr. K.L. Janjani, Advocate For the Respondent(s): Ms. Sansriti Pathak, Additional Advocate General for State of Rajasthan; Mr. Namit Saxena, Advocate for Respondent No.2