[2025:RJ-JP:3070] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal 2nd Misc Suspension Of Sentence Application (Appeal) No. 43/2025 in S.B. Criminal Appeal No.2461/2023 Rinku Kumar Son Of Guddu, Aged About 23 Years, R/o Kheda Taraf Bahatu, Dholagarh Kheda, Police Station Bahatukala, District Alwar (Raj.) (At Present In Central Jail, Alwar) ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Dr. V.D. Agnihotri For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 21/01/2025 1. The instant application for suspension of sentence is preferred in pending appeal which was admitted on 31.08.2023 and aggrieved from order of conviction and sentence dated 06.07.2023 in Sessions Case No. 28/2022 passed by learned Special Judge (POCSO Act cases) No.1, Alwar whereby appellant was convicted for offence under Sections 376 of IPC & 3/4 and 5(j)(II)/6 of POCSO Act and sentenced accordingly. 2. Learned counsel for appellant submitted that appellant is an innocent person and he was falsely implicated by complainant party. He referred the delay of 8 months in registration of case by the complainant victim. He further submitted that after registration of criminal case when samples were taken for DNA [2025:RJ-JP:3070] (2 of 3) [SOSA-43/2025] analysis and sent for examination, the report received from FSL indicated that DNA of child born from victim is not matching with DNA of present appellant. He further referred the cross- examination of PW-1 and submitted that the victim was in menstrual cycle on date of alleged incident and she has for the first time met the appellant at the time of incident. He further submitted that the trial court has failed to consider delay in reporting the matter to the police, mis-matching DNA report and attaining circumstance arising from cross-examination of PW-1. He further submitted that the appellant is a poor person and he was falsely implicated in the instant case. He also referred the falsification on record by complainant to establish that victim is a minor and submitted that there is a serious discrepancy in the age record of victim which was not considered by the trial court. At last, he submitted that appellant is in custody for last 3 years and hearing of case is likely to take substantial time. 3. Aforesaid contentions were opposed by learned Public Prosecutor and he has submitted custody certificate along with intimation slip to complainant. 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On the basis of oral statement of victim, Ex.P/2 F.I.R. was registered on 04.06.2022. The victim was medically examined on 04.06.2022 and report Ex. P/3 indicated that she was having pregnancy of 34 weeks. In oral statement, victim has named present appellant which was further affirmed in her statement under Section 161 and 164 of Cr.P.C.. Under Section 164 Cr.P.C. exhibited as Ex. P/1 victim stated that the appellant has made [2025:RJ-JP:3070] (3 of 3) [SOSA-43/2025] illicit relation with her consent. Victim was examined as PW-1 before the trial court wherein she alleged forcible rape by present appellant. 6. While considering first SOS, the grounds including delay and mis-matching of DNA report, were discussed and did not agreed with arguments advanced by the counsel. Till date the appellant has undergone sentence of 2 years 11 months out of maximum sentence of 20 years awarded to the appellant. Herein the date of birth of victim was proved as 15.05.2005 before the trial court and there is no contrary record to disbelieve claim of prosecution. The victim was found pregnant on date of registration of FIR and further she give birth to child. The DNA report Ex.C1 indicated that baby girl to victim is not biological son of appellant accused. Herein the allegation is upon the appellant and victim has corroborated the evidence and she was found pregnant though DNA of new born baby is not matching with DNA of present appellant. 7. Having considered the fact that first SOS application was dismissed by this Court on 11.10.2023 and except period of incarceration, there is no change in circumstance, therefore I am of considered view that this is not a fit case wherein indulgence of bail can be granted to appellant. 8. Accordingly, second application for suspension of sentence is hereby dismissed. Misc. application stands disposed of. (ASHOK KUMAR JAIN),J PREETI VALECHA /05