[2025:RJ-JP:18678] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 874/2024 in S.B. Criminal Appeal No. 3562/2023 Govind Son Of Ramcharan, Aged About 29 Years, Resident Of Moreda, Police Station, Balghat, District Karauli (Rajasthan) (Presently Confined In District Jail, Dausa) ----Petitioner Versus 1. State Of Rajasthan, Through P.p 2. Prabhu Dayal Son Of Chhaju Ram, Resident Of Sangam Vihar Colony, Dausa District Dausa (Rajasthan) 3. Victim, R/o ----Respondents For Petitioner(s) : Mr. Rajneesh Gupta with Mr. Ravindra Mavliya & Ms. Chanchal For Respondent(s) : Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG Ms. Manju Mahawar HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 02/05/2025 1. The instant application for suspension of sentence is preferred in pending appeal which was admitted on 14.12.2023 and aggrieved from order of conviction and sentence dated 17.11.2023 in Sessions Case No. 56/2022 passed by learned Special Judge, POCSO Act cases, Dausa whereby appellant was convicted for offence under Sections 376, 363, 366, 120-B of IPC and Section 3/4 of POCSO Act and sentenced accordingly. [2025:RJ-JP:18678] (2 of 8) [SOSA-874/2024] 2. Learned counsel for appellant submits that the appellant is an innocent person and he was falsely implicated by complainant, who is father of victim. He further submitted that the documents submitted by prosecution indicate that two different date of births came on record whereas from evidence of mother of victim established that age of victim was more than 19 years, still learned trial court has erroneously concluded that the victim is less than 18 years. He further submitted that Ex. P/2 FIR was registered by PW-3 only on suspicion and in report it was mentioned that on 02.05.2022 the appellant accused committed rape with victim and also captured video and photographs. He further submitted that the statement of victim was recorded under Section 164 Cr.P.C. and on oath she has also deposed about the incident. He referred the statement of victim PW-2 and submitted that as per her statement the rape was committed on 18.05.2022 and the victim has narrated the incident for the first time before the trial court. He further referred the statement of PW-2 and submitted that victim has denied rape on 02.05.2022. He also referred para no. 60 of judgment of trial court and submitted that as per the trial court the rape was committed on 02.05.2022. He also referred the statement of investigating officer, wherein he admitted that no evidence came during investigation to show that rape was committed on 18.05.2022. He also referred the statement of PW-14 Kalu Ram and PW-2 victim and submitted that according to PW-2 no rape was committed on 02.05.2022 but PW- 14 maintained that rape was committed on 02.05.2022. Similarly, the victim has alleged rape was committed on 18.05.2022 but investigating officer PW-14 has denied committal of rape on [2025:RJ-JP:18678] (3 of 8) [SOSA-874/2024] 18.05.2022. He further submitted that in cross-examination PW-2 has admitted that her statement under Section 164 is incorrect and her narration about incident before filing of charge-sheet was incorrect. He relied upon cross-examination of PW-3 Prabhu Dayal and submitted that incident is of 18.05.2022 and on 19.05.2022 the report was registered. 3. Learned counsel has further referred statement of PW-1 Dr. Archana Meena and submitted that no abnormality including injuries were found on genital of victim. He further submitted that in CDR analysis Ex. P/24 the tower location of both of victim and petitioner were for different areas and it indicate that the appellant was not in contact with victim either on 02.05.2022 or on 18.05.2022. He further submitted that the report registered by complainant clearly indicate that victim was fleeing her home with co-accused Rajni and due to falling from rope, she come down from upper floor both were caught and at that time the appellant accused was not with PW-2 victim. At last, he submitted that the appellant accused has remained in custody for more than 3 years and he is entitled to be released on bail as the co-accused Rajni was released on bail. 4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant has submitted that from all records the age of victim is less than 18 years and she is minor on date of incident. She further submitted that the location details of appellant accused and victim were of Dausa on both days and accused has committed rape on 02.05.2022 and also on 18.05.2022 which is evident from deposition of PW-3 father of victim. [2025:RJ-JP:18678] (4 of 8) [SOSA-874/2024] 5. Heard learned counsel for parties and learned Public Prosecutor. Perused the record. 6. On the basis of Ex. P/2 submitted by PW-3 father of victim on 19.05.2022 about incident of 02.05.2022 FIR no. 108/2022 was registered at P.S. Mahila Thana, District Dausa under Sections 376-D of IPC and 3/4 of POCSO Act. During investigation, victim was medically examined by PW-1 and her statement under Section 164 Cr.P.C. was recorded. After investigation a charge- sheet has been filed against appellant accused Govind and also against Rajni Bairwa. Learned trial court has framed charge under Sections 363, 366, 376-D of IPC and 5(G)/6 of POCSO Act and 120-B of IPC against Govind and under Sections 363, 366-A, 120- B, 376-D of IPC and 5(G)/6 of POCSO Act. The prosecution has examined 13 witnesses and exhibited 26 documents the court has exhibited Ex. C/1 DNA report. Both the accused were examined under Section 313 Cr.P.C. and they opted not to submit any defence evidence but two documents were exhibited in defence. Learned trial court has convicted appellant accused Govind under Section 3/4 of POCSO Act alternatively under Section 376 IPC and under Sections 363, 366, 120B of IPC and Rajni under Sections 363, 366, 120B of IPC. The maximum sentence awarded the present appellant accused is 10 years. 7. Co-accused Rajni Bairwa was granted bail on 04.12.2023 in criminal appeal no. 3437/2023 by a Co-ordinate Bench of this Court. The bail application of Govind was dismissed on 04.09.2023 by a Co-ordinate Bench of this Court. Thus, the appellant accused Govind remained in custody throughout the period of trial. Till [2025:RJ-JP:18678] (5 of 8) [SOSA-874/2024] date the appellant accused has served more than 3 years and 27 days. 8. A perusal of record indicate that in Ex. P/2 the rape incident of 02.05.2022 was mentioned and on 18.05.2022 the victim was fleeing with co-accused Rajni. During investigation victim was examined. The statements of victim were recorded under Section 164 Cr.P.C. on 21.05.2022 and same was exhibited as Ex. P/6. In her statement before learned Judicial Magistrate, Dausa the victim has narrated the incident of 02.05.2022 for committing rape and capturing video and photo. The trial court has framed charge for the incident of 02.05.2022. According to charge, the victim was kidnapped on 02.05.2022 whereas the report was registered on 19.05.2022 for incident of enticement and kidnapping on 18.05.2022. 9. The victim was examined as PW-2 and according to victim she met present appellant on 02.05.2022 but on 18.05.2022 the present appellant Govind has committed rape with her after closure of gate by Rajni. The cross-examination of this PW-2 suggests that she has not narrated the incident of 18.05.2022 prior to recording the statement before the trial Court. The admission of PW-2 indicate that the allegation of rape on 02.05.2022 is incorrect. It shows that the victim was not raped on 02.05.2022. The father of victim was also examined as PW-3 and according to him the victim was raped on 02.05.2022 and also on 18.05.2022. As per investigating officer PW-14 the incident of rape was committed on 02.05.2022 and during investigation it has come to notice that on 18.05.2022 no rape was committed by accused. [2025:RJ-JP:18678] (6 of 8) [SOSA-874/2024] 10. Herein this case, allegations were of two incidents, firstly, rape on 02.05.2022 in the room rented to Rajni and other girls by father of victim. The premises of rape was a house of victim. The victim was fleeing from her home with co-accused Rajni in the night of 18.05.2022. The framing of charge indicate that the charge was framed as if the incident is of 02.05.2022. It indicate that the trial court has not read material forwarded by police before framing the charge against both the accused. Time and again, we have pointed out that learned Judges of District judiciary requires extensive training so that they can develop a habit to frame charge on their own after perusing the material forwarded by prosecution but the manner in which the Special Judges, POCSO Act are working is really alarming. We are restraining ourselves on this issue to go further into the process adopted by learned trial judge. The matter clearly indicate that the victim has not supported the case of rape on 02.05.2022 and a charge was not framed about alleged rape on 18.05.2022. After the recording of evidence of victim on 05.01.2023, a charge was required to be amended by using provision under Section 216 of Cr.PC but the trial court has not taken note of same. 11. There were two date of births, brought on record but from all points the age of victim is between 16 to 18 years. According to first date of birth the age is 16 years 10 months and 27 days whereas according to second date of birth it is 17 years 5 months and 15 days but in any case the age of victim is rightly determined between 16 to 18 years. 12. Having considered the entirety of facts and circumstances of the case, without expressing any opinion on merits, but [2025:RJ-JP:18678] (7 of 8) [SOSA-874/2024] considering the grounds as raised before this Court, I am of considered view that it is a fit case wherein appellant can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellant accused- Govind Son Of Ramcharan is suspended till disposal of appeal with the condition that he would executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 12.08.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. After release of appellant on bail, he will not indulge in any criminal activity and if it is found that he is involved in any criminal activity, the order shall be recalled. 2. That he will appear before the trial Court in the month of January of every year till the appeal is decided. 3. That if the applicant(s) changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court. 4. Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court. 13. Misc. Application stands disposed of. 14. A copy of this order be sent to learned trial court through E- mail. [2025:RJ-JP:18678] (8 of 8) [SOSA-874/2024] 15. A copy of this order be sent to the Registrar General to place before Hon’ble Judge Incharge, Rajasthan Judicial Academy. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /7(SOSA)