[2025:RJ-JP:3054] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc 2nd Suspension Of Sentence Application (Appeal) No. 2240/2024 In S.B. Criminal Appeal No.471/2021 Mohammad Niyaamthullah @ Javed S/o Mohammad Barkathullah, Aged About 33 Years, R/o Kajipada, Dakshin Malikpur, Bheraipur, Dakshin 24 Paragana, Calcutta (West Bengal) (Accused Confined In Central Jail, Ajmer) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Petitioner(s) : Mr. Rajendra Singh Tanwar For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 21/01/2025 1. Present second application for suspension of sentence is filed in pending appeal preferred against judgment of conviction and sentence dated 11.01.2021 passed by Special Judge (POCSO Act Cases) No.2, Ajmer whereby appellant was convicted for offence under Section 363, 342 IPC and 5(L)/6 of POCSO Act. 2. Learned counsel for appellant submitted that out of total sentence of 10 years, the appellant has already undergone 5 years therefore he is entitled to be released on bail. He further submitted that there are other grounds which require consideration on merits but his appeal is not taken on merits for [2025:RJ-JP:3054] (2 of 4) [SOSA-2240/2024] hearing. He further submitted that if his appeal is taken on merits then he has good case for release. He further submitted that the age of victim is doubtful and she was adult on date of incident. At last, he submitted that appellant in custody and entitled to be released on ground of long incarceration. 3. Aforesaid contentions were opposed by learned Public Prosecutor. He also submitted that complainant was already informed about filing of appeal. 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On earlier occasion SOS application No.301/2021 was dismissed on 29.03.2024 wherein we have noticed that: “A perusal of record indicated that present appellant remained in custody during entire trial. Herein, after the registration of report on the basis of Ex.P-7 victim was recovered on 23.06.2019 and a memo Ex.P-1 was prepared. The victim was examined under Section 164 Cr.P.C. and the statement was exhibited as Ex.P-6. The victim was examined as PW-1 whereas complainant & mother of victim, was examined as PW-2. Incharge teacher of school wherein victim has taken admission in Class-II was examined as PW-5 to prove Ex.-P-9 to P-11, wherein the date of birth of victim was reflected as 11.09.2006. When we look at the statements referred hereinabove and the documents available on record, no suggestion or material as pointed out to contradict the age of victim was available on record, therefore, whatever is available on record it clearly indicated that the date of birth as referred in para 27 of page 17 of judgment of learned trial Court was proved as 11.09.2006. Hence, the victim [2025:RJ-JP:3054] (3 of 4) [SOSA-2240/2024] was less than 14 years on the date of incident whereas Ex.P-7, the age of victim was mentioned as 16 years. Whatever be the case but it may be somewhere around 16 years but definitely below 18 years. Herein upon the evidence of PW-1, learned trial Court concluded that act of penetrative assault was committed by present appellant. The exhibits of FSL report, Ex.C-1 and corroborated DNA report further confirms that male stains detected on Ex.-1 i.e. leggings of victim is matching with the material DNA profile obtained from Ex.-7 i.e. blood sample of accused/present appellant.” 6. Initially FIR No.158/2019 was registered under Sections 363 and 342 IPC on 17.09.2019. The victim was recovered on 22.06.2019. As per evidence, both oral and documentary date of birth of victim was 11.07.2006, which means that on date of incident (16.06.2019). The age of victim is less than 14 years. The prosecution has led evidence to establish the age in accordance with judgment in case of P. YUVAPRAKASH Vs. STATE REP. BY INSPECTOR OF POLICE 2023 INSC 626. 7. A perusal of record indicated that present petitioner was arrested on 30.06.2019 and since then he is in custody. The maximum punishment in the instant case is rigorous imprisonment of 10 years and out of which five years and six months have undergone by appellant. Herein the victim has deposed against the appellant in cross-examination, she termed the nature of present appellant as bad. [2025:RJ-JP:3054] (4 of 4) [SOSA-2240/2024] 8. Considering the age of victim, I am of considered view that appellant is not entitled to be released on bail after completion of 50 percent of sentence therefore looking to gravity of offence, appellant is not entitled to be released on bail. 9. Accordingly, second application for suspension of sentence is hereby dismissed. Misc. application stands disposed of. (ASHOK KUMAR JAIN),J PREETI VALECHA /02