[2025:RJ-JP:19592] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 14/2023 In S.B. Criminal Appeal No.16/2023 Govind @ Golu Son Of Ramcharan, Aged About 20 Years, Resident Of Khandevla, Police Station Khandar, District Sawai Madhopur (Rajasthan) (Accused Appellant Is Confined In District Jail, Sawai Madhopur) ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent Connected With S.B. Criminal Appeal (Sb) No. 76/2021 Yogesh S/o Mahaveer, ----Petitioner Versus State Of Rajasthan, Through P.p. ----Respondent For Petitioner(s) : Mr. Tarun Jain Mr. Abdul Rahim Khan For Respondent(s) : Mr. Devi Singh, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 08/05/2025 1. The instant application for suspension of sentence is preferred by appellant-Govind @ Golu Son Of Ramcharan in appeal filed aggrieved from order of conviction and sentence dated 23.11.2022 in Sessions Case No.81/2020 passed by learned Special Judge (POCSO Act Cases), Sawaimadhopur whereby [2025:RJ-JP:19592] (2 of 6) [SOSA-14/2023] appellant was convicted for offence under Sections 447, 354B, 376D IPC and Section 5/6 of POCSO Act and sentenced accordingly. 2. Learned counsel for the appellant while relying upon grounds of appeal submitted that appellant is an innocent person and he has been falsely implicated in the instant case. He further submitted that date of incident is 29.01.2020 the prosecution has claimed date of birth of victim as 09.07.2002 and she was 17 years 6 months 20 days old, which is near 18 years. He further referred the statement of PW-6 (mother of victim) and PW-1 (father of victim) and submitted that as per them after some years of marriage, victim was born to them and according to estimate, the age of victim is not less than 20 years. He further submitted that no birth certificate was filed at the time of admission of victim and evidence of PW-8 Mohan Singh is not reliable. He further submitted that the trial court ignored the evidence on record while determining the age of victim. He further referred the statement of PW-7 Dr. Shimla Meena and submitted that on date of examination dated 30.01.2020, no injuries were found on genital of victim. He further submitted that after collection of sample same were sent to FSL and a negative DNA report was received from FSL, which indicated that appellant is not involved in alleged incident. He also referred statement of PW-3 Mangi Lal, PW-4 Brij Mohan and PW-5 Gauri Shankar and submitted that after noise when they reached in the field, Yogesh was found with victim but present appellant was not found at spot. He further submitted that as per story, three persons accompanied victim to the field but presence of two persons was established. [2025:RJ-JP:19592] (3 of 6) [SOSA-14/2023] He further referred the contradiction in the story of victim and also referred cross-examination of IO (PW-21) and submitted that the narration of story by victim is totally false and not proved from the evidence of victim. He further referred the defence of appellant and submitted that appellant was falsely implicated by complainant so as to avoid payment against financial transaction. He referred the statement of DW-1 Ram Charan, father of appellant and submitted that documents along with other material is placed on record to establish defence of appellant, that case is filed due to animosity. At last, he submitted that appellant is young boy and he is in custody for last 5 years therefore he is entitled to be released on bail. 3. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. He submitted that reply has been filed to oppose the application and complainant was also informed. 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On 29.01.2020 father of victim PW-1 has filed Ex.P-1 about forcible rape by Yogesh, Govind and one unknown person. Witnesses Shakeer, Brij Mohan were named in the FIR. On the basis of report, FIR No.22/2020 under Section 447, 376D IPC and Section 5/6 of POCSO Act was registered at P.S. Khandar, Sawaimadhopur. Initially the another appellant Yogesh was arrested and a charge-sheet was filed against him. After trial, Yogesh was convicted on 23.12.2020. Thereafter a supplementary charge-sheet was filed against Govind @ Golu and charge was framed against him. The prosecution has examined 21 witnesses [2025:RJ-JP:19592] (4 of 6) [SOSA-14/2023] and exhibited 19 documents. Two documents Ex.C1 and C2 were exhibited by Court. The statement of accused was recorded under Section 313 Cr.P.C. and in defence DW-1 Ram Charan was examined. Learned trial court has convicted appellant under Sections 447, 354B, 376D IPC and Section 5/6 of POCSO Act. The maximum sentence awarded to appellant is 20 years. 6. Accused Yogesh has also filed criminal appeal No.76/2021 aggrieved from judgment of conviction and sentence dated 23.12.2020 in sessions case No.20/2020 passed by learned Special Judge (POCSO Act Cases), Sawaimadhopur and his SOS application No.41/2021 was dismissed as withdrawn on 16.07.2024 with liberty to renew prayer, if appeal is not heard finally on or before 31.05.2025. 7. The period of incarceration of petitioner accused till date is 4 years 10 months 16 days and appellant remained in custody through out the period of trial though police has kept investigation pending against him under Section 173(8) of Cr.P.C. 8. In report Ex.P-1 complainant has claimed victim as minor and Ex.P6 to P-8 were produced by prosecution with supporting evidence of PW-8 Mohan Singh, to prove that victim is minor It is an admitted position that no birth certificate was filed at the time of admission but the admission form was filed several years before the incident. We have considered the statement of father of victim recorded as PW-1 before the trial court. The age of victim cannot be estimated on the basis of oral evidence of PW-1. The material on record is proved by PW-8 and as per Section 94 of JJ Act, the trial court has determined the age of victim and same is less than 18 years or between 17-18 years. If, there is any ground then [2025:RJ-JP:19592] (5 of 6) [SOSA-14/2023] same can be considered at the time of final adjudication. The evidence of victim suggest that 3 persons came on Apache and Yogesh and Govind both have dragged her and committed rape with her. The victim has deposed that initially Yogesh has committed rape with her and thereafter Govind committed rape with her. On noticing presence behind standing crop of Mustard, PW-1 found Govind and Yogesh but when he caught Yogesh and Govind, they ran away. This evidence was further corroborated by PW-3 Mangi Lal. Somewhat corroborations were made by PW-4 Brij Mohan and PW-5 Gauri Shankar, who also reached the spot. 9. The evidence of PW-7 Dr. Shimla Meena suggest that no injuries were found on genital of victim but there were some abrasions on posterior region of body of victim. Learned counsel for appellant has referred FSL report and we have considered FSL report Ex.C1 and C2. Human semen was present on underwear/salwar and kurta of victim. Similarly human semen was also detected on vulvo vaginal slid and swab of victim. The DNA report Ex.C2 indicated that the stains were matching with DNA profile of Yogesh and same is not matching with Govind. 10. It is a case of gangrape and evidence on record clearly suggest involvement of present appellant and Yogesh. The victim has corroborated that appellant and Yogesh have committed rape with her and the surrounding circumstances were further corroborated from other evidence. 11. Learned counsel for appellant has referred evidence of DW-1 Ramcharan and some documents as exhibited by him in defence to indicate financial transactions with complainant. Herein this case, if report is registered only to implicate appellant, then he [2025:RJ-JP:19592] (6 of 6) [SOSA-14/2023] could have made representation to police, but instead of making representation, he did not participated in initial investigation and remained absconded till conclusion of trial against Yogesh. The conduct of appellant is also evident on record therefore looking to overall facts and circumstances of the case, this is not a fit case to enlarge appellant on bail. 12. In view of discussion made hereinabove, instant SOS application is hereby dismissed. Misc. Application stands disposed of. 13. List S.B. Criminal Appeal No.16/2023 for hearing along with S.B. Criminal Appeal No.76/2021 in July, 2025. (ASHOK KUMAR JAIN),J PREETI VALECHA /04-05