[2025:RJ-JP:20659] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 673/2023 In S.B. Criminal Appeal No.928/2023 Pawan Kumar Sharma Son Of Gautam Sharma, Aged About 25 Years, Resident Of Kawalpura, Police Station Mashrakh, District Chhapra (Bihar) At Present Resident Of Madan Colony, Harchandpura, Police Station UIT Bhiwadi (Rajasthan) (At Present In Central Jial Alwar) ----Appellant-Applicant Versus State Of Rajasthan, Through P.P ----Respondent For Appellant- Applicant(s) : Mr. R.R.Goyal For Respondent(s) : Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 12/05/2025 1. The instant suspension of sentence application is preferred by the appellant-applicant accused Pawan Kumar Sharma Son of Gautam Sharma (hereinafter referred to as ‘the appellant’) in pending appeal filed aggrieved from judgment of conviction and sentence dated 18.04.2023 in Sessions Case No.39/2021 passed by learned Special Judge, POCSO Act Cases, No.3, Alwar whereby this appellant accused was convicted under Sections 363, 366, 376 of IPC and 5(j)(ii) of POCSO Act. The maximum sentence awarded to the appellant is 20 years. [2025:RJ-JP:20659] (2 of 5) [SOSA-673/2023] 2. Learned counsel for the appellant submits that the appellant is innocent and he was falsely implicated by the complainant. He further submitted that the report was registered after a substantial delay and no explanation was offered by prosecution to explain the reason of delay. He further submitted that the prosecution has claimed that the age of victim was more than 16 years but no birth certificate was filed on record to prove the age of victim. He further referred the cross-examination of PW-9 (teacher) and submitted that neither any affidavit nor birth certificate was produced at the time of admission of victim in the school and the record prepared by him is not reliable. He also referred the statement of father of victim PW-4 and submitted that as per him, the age of victim is more than 18 years. He further submitted that unless the age is proved beyond reasonable doubt and in accordance with law, the finding of trial Court is perverse. He further referred the cross-examination of PW-1 victim and submitted that the victim has voluntarily left her home and she stayed two months with accused and she has not raised any alarm or hue and cry to seek assistance from anyone. He further submits that the statement of mother and father of victim clearly indicate that victim was not forcefully kidnapped from home and the version of victim is not trustworthy. He further referred the statement of uncle of victim PW-3 and father of victim PW-4 and submitted that the victim was brought by family members from Banaras (Varanasi) whereas there is another version of recovery from Bihar. He also submitted that as per Investigating Officer PW-15, the victim was recovered from Bihar. He referred the statement of PW-20 Dr. Neelam Kumari and [2025:RJ-JP:20659] (3 of 5) [SOSA-673/2023] submitted that no injury was found on genital of body of victim which means that no forcible rape was committed with the victim. He also referred the process of collection of sample and submitted that there was a delay and sanctity of sample was compromised. He further submitted that the appellant-accused was released on bail and he had not misused liberty granted to him and disposed of appeal will take its own time. 3. Aforesaid contentions were opposed by learned Public Prosecutor. He further submitted latest custody certificate and same is taken on record. He also placed reliance upon reply submitted by the State. 4. Heard learned counsel for the appellant and learned Public Prosecutor and perused the record but also considered the reply filed by the State. 5. On basis of Report Ex.P-5 lodged by father of victim PW-4 on 03.07.2021 about elopement of his minor daughter on enticement by the appellant accused, FIR No.84/2021 under Section 363, 366A IPC was registered at Police Station UIT, Bhiwadi, District Alwar. During investigation, victim was recovered on 02.09.2021 and she was medically examined and her statements under Sections 161 and 164 were recorded. After investigation, police has filed charge-sheet against the appellant accused. After framing the charge, prosecution has examined 21 witnesses and exhibited 23 documents. The accused was examined under Section 313 CrPC and he has not submitted any defence evidence. The appellant accused was convicted and sentenced under Section 363, 366, 376 of IPC and Section 5(j)(ii) of the POCSO Act. [2025:RJ-JP:20659] (4 of 5) [SOSA-673/2023] 6. A perusal of record indicate that after elopement of victim on 24.06.2021, the grand father of victim has expired on 02.07.2021 due to shock. The victim was recovered on 02.09.2021 and during medical examination, abrasions were found on both sides of labia minora whereas hymen seems torned and red-inflamed tender on touch. This report was proved by PW-20 Dr. Neelam Kumari. Victim was examined as PW-1 before the trial Court and as per her, the appellant accused enticed her and after taking her to Banaras and committed rape with her. We have considered the cross-examination of victim and also considered statement of father of victim PW-4. Also considered the statement of mother and uncle of victim. We have also considered the cross- examination of PW-15 Rama Shankar. The investigation was partially carried out by PW-16 Virendra Singh. 7. Here in this case, victim was pregnant and after abortion PW-17 Dr. Sonika Chandrawat stated that the fetus was sealed and handed over to police for FSL examination. This fact was also corroborated by PW-19 Dr. Saroj Sharma. The samples were deposited by PW-21 Lal Singh in Malkhana. The statement of victim was recorded in detail under Section 164 CrPC and exhibited as Ex.P-3. 8. To prove the age of victim, PW-9 R.K. Gupta (teacher) was examined and he exhibited Ex. P-12 to Ex. P-14 and as per him, the date of birth of victim is 25.02.2005. Thus on 24.06.2021, the age of victim is more than 16 years but less than 17 years. 9. The evidence on record suggests that victim was subjected to abortion and that to at very tender age between 16 to 17 years. The FSL Report Ex.P-21 indicate that the source of DNA profile [2025:RJ-JP:20659] (5 of 5) [SOSA-673/2023] (Blood sample of product of conception is matching and biologically related with accused and victim). Aforesaid clearly indicate that due to physical relationship of accused with victim, she conceived and she was subjected to termination of pregnancy. 10. Here in this case, the appellant accused was released on bail in pursuant to order dated 15.03.2022 in Bail Application No.3653/2022 during trial and till date this appellant has undergone more than 2 years and 10 months. The age of appellant is 25 years on date of incident whereas age of victim was between 16 to 17 years and she became pregnant during period of two months which she stayed with the appellant accused. Therefore, looking to the gravity of the matter, the appellant accused is not entitled to be released on bail. 11. In view of the discussion made hereinabove, the suspension of sentence application preferred by the appellant Pawan Kumar Sharma is hereby dismissed. 12. List this appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J MR/86