JAMNALALversusSTATE OF RAJASTHAN AND ANOTHER

                  [2025] 9 S.C.R. 98 : 2025 INSC 935

                               Jamnalal
                                   v.
                    State of Rajasthan and Another
                     (Criminal Appeal No. 3396 of 2025)
                                06 August 2025
           [B.V. Nagarathna and K.V. Viswanathan,* JJ.]


                            Issue for Consideration
       In the instant appeal, the father of the prosecutrix challenges the
       order of the High Court. By the said order, the sentence imposed
       on respondent no.2 herein was suspended till the final disposal
       of the appeal. Whether the High Court considered the relevant
       factors for suspension u/s.389 CrPC.

                                   Headnotes†
       Code of Criminal Procedure, 1973 – s.389 – Protection of
       Children from Sexual Offences Act, 2012 – s.3/4(2) – Penal
       Code, 1860 – s.376(3) – Respondent no.2 was found guilty
       for the offences punishable u/s.3/4(2) of POCSO Act as
       well as u/s.376(3) of IPC – Respondent no.2 was sentenced
       u/s.3/4(2) of POCSO Act and no sentence was imposed
       u/s.376(3) in view of s.42 of POCSO Act – Insofar as s.3/4(2) of
       POCSO Act was concerned, respondent no.2 was sentenced to
       undergo 20 years rigorous imprisonment – However, the High
       Court suspended the sentence of respondent no.2 and enlarged
       him on bail till the pendency of the appeal – Correctness:
       Held: 1. The High Court has not adverted to any of the relevant
       factors for considering the case for suspension u/s.389 and keeping
       in mind the antecedents of the respondent no.2, this Court is of
       the opinion that High Court was not justified in suspending the
       sentence. [Para 12]
       2. The reasoning of the High Court, falls far short of the parameters
       required u/s.389 of CrPC 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 –


* Author
[2025] 9 S.C.R.                                                              99

               Jamnalal v. State of Rajasthan and Another


     According to the evidence of the prosecutrix, respondent no.2, at
     gunpoint, closed her mouth and forcibly took her to a house and
     committed rape on her – All that the medical evidence said was
     that no conclusive opinion about the crime could be given since
     FSL Report was awaited – That does not mean that the ocular
     evidence could be ignored – As far as non-availability of FSL Report
     is concerned, the prosecution has explained the situation and the
     Trial Court has also found that the non-availability of the DNA
     Report did not adversely affect the case of the prosecution – The
     reasoning that despite the availability of washrooms in the house
     it was difficult to believe that the prosecutrix could go out for the
     toilet, is conjectural in nature – Therefore, the order of the High
     Court is set aside and respondent no.2 is directed to surrender
     before the Court of Special Judge (POCSO). [Paras 16,19]

     Bail – Distinction between setting aside bail by the a higher
     Court and cancellation of bail:
     Held: There is clear distinction in law between setting aside of
     the bail by a higher Court and cancellation of the bail – While
     cancellation of bail is due to some supervening circumstances like
     breach of bail condition, setting aside of the bail is concerned not
     with the breach of condition but with the justifiability and soundness
     of the order granting bail. [Para 13]

                              Case Law Cited
     Omprakash Sahni v. Jai Shankar Chaudhary and Another [2023]
     5 SCR 141 : (2023) 6 SCC 123; Vijay Kumar v. Narendra and
     Others (2002) 9 SCC 364 – relied on.
     Neeru Yadav v. State of Uttar Pradesh and Another [2014] 12 SCR
     453 : (2014) 16 SCC 508 – referred to.

                                 List of Acts
     Code of Criminal Procedure, 1973; Protection of Children from
     Sexual Offences Act, 2012; Penal Code, 1860.

                              List of Keywords
     Sentence; Suspension of sentence; Bail; Section 389 of CrPC;
     Rape; Sexual assault; Medical evidence; Ocular evidence; FSL
     report; DNA report; Setting aside bail; Cancellation of bail.
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                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       3396 of 2025
       From the Judgment and Order dated 03.09.2024 of the High
       Court of Judicature for Rajasthan at Jaipur in SBCRMSOSA(A)
       No. 852 of 2024

                          Appearances for Parties
       Advs. for the Appellant:
       K. L. Janjani, Kailash J. Kashyap.
       Advs. for the Respondents:
       Ms. Sansriti Pathak, A.A.G., Ms. Shagufa Khan, Aman Prasad,
       Ms. Nidhi Jaswal, Namit Saxena.

                 Judgment / Order of the Supreme Court

                                 Judgment

       K.V. Viswanathan, J.

1.     Leave granted.
2.     We have heard Mr. K.L. Janjani, learned counsel for the appellant,
       Ms. Sansriti Pathak, learned Additional Advocate General for the first
       Respondent - State of Rajasthan, and Mr. Namit Saxena, learned
       counsel for Respondent No.2.
3.     The present Appeal by the father of the prosecutrix challenges the
       order of the High Court of Judicature for Rajasthan, Bench at Jaipur
       dated 03.09.2024 in S.B. Criminal Misc. Suspension of Sentence
       Application (Appeal) No. 852 of 2024 in S.B. Criminal Appeal No. 397
       of 2024. By the said order, the sentence imposed on Respondent
       No.2 herein was suspended till the final disposal of the appeal
       and Respondent No.2 was directed to be released on bail, subject
       to certain conditions imposed on him by Special Judge (POCSO)
       Karauli (Rajasthan) by her judgment and order dated 07.02.2024.
4.     Respondent No.2 has been found guilty for the offences punishable
       under Section 3/4 (2) of the Protection of Children from Sexual
       Offences Act, 2012 (for short ‘POCSO Act’) as well as under Section
       376(3) of the Indian Penal Code, 1860. Respondent No.2 was
[2025] 9 S.C.R.                                                                101

               Jamnalal v. State of Rajasthan and Another


     sentenced under Section 3/4 (2) of POCSO Act and no sentence was
     imposed under Section 376(3) in view of Section 42 of POCSO Act.
     Insofar as Section 3/4 (2) of POCSO Act was concerned, Respondent
     No.2 was sentenced to undergo 20 years rigorous imprisonment
     and was ordered to pay a fine of Rs. 50,000/-. In default of payment
     of fine, Respondent No.2 was directed to undergo additional 2
     years rigorous imprisonment. Respondent No.2 had undergone
     imprisonment for a period of 1 year and 3 months after which his
     sentence was suspended by the High Court.
5.   The High Court while suspending the sentence, after setting out the
     contention of the respective parties, has recorded only the following
     reasons before enlarging Respondent No.2 on bail:
           “5. Upon a consideration of the arguments advanced on
           behalf of the appellant as well as learned State Counsel
           and counsel for the complainant and having regard to the
           facts and circumstances as available on the record and
           especially the fact 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; despite
           the availability of washrooms in the house, it is little difficult
           to digest that prosecutrix will go out for toilet; there is no
           prospect of being heard and disposal of this appeal in near
           future, this Court is of the opinion that the appellant has
           available to him strong grounds to assail the impugned
           judgment of conviction and sentence. Thus, it is a fit case
           for suspending the sentences awarded to the applicant-
           appellant during pendency of the instant appeal.”
6.   The Trial Court, while convicting Respondent No.2, relied on the
     evidence of prosecutrix PW-3 who had deposed to the following
     effect: - On 13.06.2023, at 4 PM, when she had gone to the field to
     defecate, Respondent No.2 came from behind and at gun point after
     closing her mouth took her to Amro’s house near the dry tank located
     in the field. Thereafter, the prosecutrix deposed that Respondent
     No.2 committed rape on her; that she came back and narrated the
     incident to her mother and other family members; that her father had
     gone out at that time and he came little while thereafter; that she
     went with her father to the police station where her father lodged the
     First Information Report. She also deposed that she was medically
     examined, and she had given her undergarments and Pajama to
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       the Doctor. The statement under Section 164 of Code of Criminal
       Procedure, 1973 (for short ‘Cr.P.C’) was recorded earlier where she
       maintained her case against Respondent No.2. She further deposed
       that Respondent No.2 had forcibly removed her clothes and laid her
       on the mattress on the cot on the ground floor of the house.
7.     The Trial Court found that no material contradictions had emerged
       in the evidence. The Trial Court further relied on the evidence of the
       mother of the prosecutrix-PW-2 and father PW-4. Dealing with the age
       of the victim, the Trial Court, by relying on the admission application
       filled for admission to the school (Exhibit P-1) the original school
       record register (Exhibit P-2) as well as the birth certificate (Exhibit
       P-9), came to the conclusion that the prosecutrix was a child under
       Section 2(d) of POCSO Act, since the date of birth was 07.03.2009.
       The date of incident being 13.06.2023, the victim was 14 years and
       3 months of age. According to the Trial Court, the documentary
       evidence fulfilled the parameters set out under Section 94 of the
       Juvenile Justice (Care and Protection of Children) Act, 2015.
8.     Dealing with the medical evidence, the Trial Court stated that the
       prosecutrix was medically examined and the evidence was to the effect
       that no external visible injury was found on the body and genitals of
       the victim and her hymen was in an old torn healed state. The medical
       evidence was to the effect that no conclusive opinion about the crime
       could be given and FSL report was kept awaited for further opinion.
9.     The Trial Court also noticed that the prosecution did not furnish
       the FSL and DNA report till the Trial was over. However, the Court
       held that the case was not adversely affected, since DNA report
       could only be corroborative in nature. The Trial Court raised the
       presumption under Section 29 and 30 of POCSO Act to presume
       that unless the contrary was proved, it was the accused who had
       committed the offence.
10. One would have expected the High Court hearing an application under
    Section 389 of Cr.P.C. for suspension of sentence to examine whether
    prima facie there was anything palpable on the record to indicate if the
    accused had a fair chance of overturning the conviction. In Omprakash
    Sahni v. Jai Shankar Chaudhary and Another1, this Court had the
    following to say on the scope of Section 389 of the Cr.P.C.


1    (2023) 6 SCC 123
[2025] 9 S.C.R.                                                           103

               Jamnalal v. State of Rajasthan and Another


           “23. The principle underlying the theory of criminal
           jurisprudence in our country is that an accused is
           presumed to be innocent till he is held guilty by a court
           of competent jurisdiction. Once the accused is held guilty,
           the presumption of innocence gets erased. In the same
           manner, if the accused is acquitted, then the presumption
           of innocence gets further fortified.
           24. From perusal of Section 389 CrPC, it is evident that
           save and except the matter falling under the category of
           sub-section (3) neither any specific principle of law is laid
           down nor any criteria has been fixed for consideration of
           the prayer of the convict and further, having a judgment
           of conviction erasing the presumption leaning in favour of
           the accused regarding innocence till contrary recorded by
           the court of competent jurisdiction, and in the aforesaid
           background, there happens to be a fine distinction between
           the prayer for bail at the pre-conviction as well as the
           post-conviction stage viz. Sections 437, 438, 439 and
           389(1) CrPC.
           33. Bearing in mind the aforesaid principles of law, the
           endeavour on the part of the court, therefore, should be to
           see as to whether the case presented by the prosecution
           and accepted by the trial court can be said to be a case
           in which, ultimately the convict stands for fair chances of
           acquittal. If the answer to the abovesaid question is to be
           in the affirmative, as a necessary corollary, we shall have
           to say that, if ultimately the convict appears to be entitled
           to have an acquittal at the hands of this Court, he should
           not be kept behind the bars for a pretty long time till the
           conclusion of the appeal, which usually takes very long
           for decision and disposal. However, while undertaking
           the exercise to ascertain whether the convict has fair
           chances of acquittal, what is to be looked into is something
           palpable. To put it in other words, 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. The appellate
           court should not reappreciate the evidence at the stage
           of Section 389 CrPC and try to pick up a few lacunae or
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              loopholes here or there in the case of the prosecution.
              Such would not be a correct approach.”
11. The State has also filed an affidavit before us setting out the criminal
    antecedents of Respondent No.2, including details about the cases
    in which he has been acquitted. Out of the 11 cases mentioned in
    the Chart, 5 have ended in acquittal and 6 are pending. The chart
    is set out hereinbelow: -

       S.N.     Case Nos. along    Challan No.     Police      Any other
                   with Date       along with      Station     particular
                                      Date
       1.      FIR No. 279/2010    Challan No. Nadouti
               dated 06.12.2010    176/10 dated
               under Sections      23.12.2010
               3/25, Arms Act
       2.      FIR No. 332/2010    Challan No.    Karouli
               dated 05.08.2010    62/10 dated
               under Sections      30.08.2010
               341, 323, 325 IPC
       3.      FIR No. 47/2011     Challan No.    Kudhgaon
               dated 05.04.2011    64/12 dated
               under Sections      28.06.2012
               457 and 380 IPC
       4.      FIR No. 128/2011    Challan No.    Karauli    Judgement
               dated 25.06.2011    91/12 dated               on
               under Sections      20.06.2012                18.03.2013
               457 and 380 IPC                               By ACJM
                                                             Acquitted:
       5.      FIR No.105/2012     Challan No.               Judgment on
               dated 24.04.2012    100/12 dated              11.02.2021
               under Sections 3    16.07.2015                Acquitted
               and 25 Arms Act
       6.      FIR No. 82/2012 Challan No.        Karauli    Judgement
               dated 01.04.2012 96/12 dated                  on
               under Sections    12.07.2012                  25.01.2014
               394, 120B IPC and                             by ACJM,
               3 and 25 of Arms                              Karauli
               Act                                           Acquitted:
                                                             benefit of
                                                             doubt given
[2025] 9 S.C.R.                                                          105

                 Jamnalal v. State of Rajasthan and Another



      7.      FIR No.166/2015     Challan No.                  Acquitted on
              dated 03.09.2015    116/15 dated                 08.02.2020
              under Sections      16.10.2015                   by ACJM
              323, 341 IPC
      8.      FIR No. 59/2017     Challan No.                  Acquitted on
              dated 25.04.2017    44/17 dated                  08.02.2020
              under Sections      04.05.2017                   by ACJM,
              323, 341 and 34                                  Lok Adalat
              IPC
      9.      FIR No. 43/2019 Challan No.
              dated 27.01.2019 33/19 dated
              under Sections 3 25.03.2019
              and 25 Arms Act
      10.     FIR No.318/20       Challan No.
              dated 13.12.2020    40/21 dated
              under Sections      10.03.2021
              379, and 411 IPC
      11.     FIR No. 147/2021    Challan No.
              dated 08.07.2021    121/21 dated
              under Sections      30.09.2021
              147, 323, 341 IPC

12. Taking into account the fact that the High Court has not adverted to
    any of the relevant factors for considering the case for suspension
    under Section 389 and keeping in mind the antecedents, we are of the
    opinion that High Court was not justified in suspending the sentence.
13. In the affidavit filed before us, Respondent No.2 has contended that
    there is no allegation of post-bail misconduct or breach of conditions
    warranting the setting aside of the bail order. The submission is
    fallacious. There is clear distinction in law between setting aside of the
    bail by a higher Court and cancellation of the bail. While cancellation
    of bail is due to some supervening circumstances like breach of bail
    condition, setting aside of the bail is concerned not with the breach of
    condition but with the justifiability and soundness of the order granting
    bail (See Neeru Yadav v. State of Uttar Pradesh and Another 2).
14. It has been further contended that there was lack of corroborative
    medical and forensic evidence. The State, in its counter affidavit,


2   (2014) 16 SCC 508
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                          Supreme Court Reports


       averred that the FSL/DNA report could not be presented by the
       prosecution before the conclusion of trial and that the FSL report
       which has since been received does mention the presence of male
       DNA/semen of the accused on the private part and underwear of
       the victim. We are not inclined to comment one way or the other
       on the merits of the FSL report and we leave it to the prosecution
       if it so desires to resort to such legally permissible procedure as is
       available in law to bring the same on record.
15. Independent of the FSL and DNA report and considering the nature of
    the case and the antecedents of Respondent No.2 and after carefully
    examining the judgment of conviction, we feel that the High Court
    was not justified in suspending the sentence.
16. 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. According to the evidence of the prosecutrix, Respondent
    No.2, at gunpoint, closed her mouth and forcibly took her to the house
    of Amro and committed rape on her. All that the medical evidence
    said was that no conclusive opinion about the crime could be given
    since FSL Report was awaited. That does not mean that the ocular
    evidence could be ignored. As far as non-availability of FSL Report is
    concerned, the prosecution has explained the situation and the Trial
    Court has also found that the non-availability of the DNA Report did not
    adversely affect the case of the prosecution. The reasoning that despite
    the availability of washrooms in the house it was difficult to believe
    that the prosecutrix could go out for the toilet, is conjectural in nature.
17. In Vijay Kumar v. Narendra and Others 3 this Court observed as
    follows:
            “10. On perusal of the record and on consideration of the
            submissions made by the learned counsel appearing for
            the parties, we are of the view that in the context of the
            facts and circumstances of the case the High Court was
            in error in passing the order releasing the respondents on
            bail. The High Court has neither given any reason nor has


3   (2002) 9 SCC 364
[2025] 9 S.C.R.                                                              107

                  Jamnalal v. State of Rajasthan and Another


             indicated any exceptional circumstance for granting bail to
             the respondents. In the above circumstances, it is difficult
             for us to even surmise the circumstance which prompted
             the learned Single Judge to consider the accused persons
             to be entitled to the discretionary relief of bail pending the
             appeal. The principle is well settled that in considering
             the prayer for bail in a case involving a serious offence
             like murder punishable under Section 302 IPC, the court
             should consider the relevant factors like the nature of the
             accusation made against the accused, the manner in which
             the crime is alleged to have been committed, the gravity of
             the offence, and the desirability of releasing the accused
             on bail after they have been convicted for committing the
             serious offence of murder. Our attention has not been
             drawn to any material which would show that the learned
             Single Judge took into consideration the relevant factors
             while passing the bail order. We refrain ourselves from
             making any observation touching on merits of the case lest
             it may prejudice any of the parties. Suffice it to state that
             we do not consider this a fit case for grant of bail to the
             respondents during pendency of the appeal filed by them.”
     Though said in the context of Section 302 IPC, it applies with equal
     force to a case of the present nature under the POCSO Act, also.
18. We make it clear that the observations made herein are only for
    the purpose of setting aside the order of suspension of sentence.
19. In view of what has been stated hereinabove, we set aside the order
    of the High Court dated 03.09.2024 in S.B. Criminal Misc. Suspension
    of Sentence Application (Appeal) No. 852 of 2024 in S.B. Criminal
    Appeal No. 397 of 2024. The appeal is allowed. Respondent No.2
    is directed to surrender before the Court of Special Judge (POCSO)
    Karauli, (Rajasthan), on or before 30th August 2025, failing which,
    the State shall take Respondent No.2 into custody.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan