Rajasthan High Court

Rajasthan High Court: In an application for suspension of sentence for offenses under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a single-judge bench comprising of Anoop Kumar Dhand, J., allowed the appellant’s application for suspension of sentence. The Court highlighted procedural irregularities in protecting the victim’s identity and called for sensitization programs for Police and Judicial Officers to ensure compliance with legal provisions safeguarding victims’ identities.

In the instant matter, the appellant was convicted by the Court of Special Judge POCSO Act, for offenses under the Protection of Children from Sexual Offences (POCSO) Act. The conviction was primarily based on DNA evidence. The prosecutrix, referred to as “A” to protect her identity, initially accused the appellant of rape in her Examination-in-Chief but later recanted during cross-examination. Aggrieved by the impugned order of conviction, the appellant preferred an appeal challenging the same. The appellant argued that the retraction of allegations by the prosecutrix and lack of support from her parents undermines the credibility of the prosecution’s case. The appellant, additionally, contended that conviction based solely on a DNA report is insufficient.

After considering the arguments advanced, authorities cited and examining the available evidence, the Court noted the prosecutrix’s retraction of allegations during cross-examination, lack of parental support, and reliance solely on a DNA report for conviction. The Court found that the conviction was indeed solely based on DNA evidence, without strong corroborative evidence, which is not sustainable. Moreover, considering the appellant’s custody since the date of arrest and the likely duration for appeal disposal, the Court deemed it appropriate to suspend the appellant’s sentence. The Court ordered the suspension of the substantive sentence awarded to the appellant until the final disposal of the appeal and imposed certain conditions, including the deposit of a fine amount, execution of a personal bond, and appearance before the trial court at specified intervals. The Court instructed the trial court to maintain a separate file for the appellant’s attendance and to report any non-compliance to the High Court for bail cancellation.

Furthermore, the Court highlighted the violation of mandatory provisions under Sections 24(5) and 33(7) of the POCSO Act and Section 228-A of the Penal Code, 1860 regarding the protection of the victim’s identity. The Court criticised the failure of the Investigating Officer and the Judicial Magistrate to adhere to mandatory provisions safeguarding the victim’s identity and emphasised on the need for sensitization programs for law enforcement officers to ensure compliance with these provisions. The Court cited Nipun Saxena v. Union of India, 2019 (2) SCC 703 and interpretated the relevant legal provisions to underscore the necessity of strict compliance with identity protection law. The Court directed the Additional Chief Secretary, Department of Home, Government of Rajasthan and Director General of Police to get sensitization programmes conducted through the Police Academy for Police Officers from time to time for keeping the identity of the rape victims protected while conducting investigation.

[Rohit Bairwa v. State of Rajasthan, 2024 SCC OnLine Raj 862, order dated 08-04-2024]

Advocates who appeared in this case :

Mr. Abdul Kalam Khan with Ms. Simran Bharti and Mr. Ritesh Kumawat, Counsel for the Petitioner

Mr. Atul Sharma, PP and Mr. Neeraj Sharma, Counsel for the Respondents

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