[2025:RJ-JP:19442] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 1070/2023 in S.B. Criminal Appeal No. 1885/2023 Rahul S/o Dayachand, R/o Bhiwadi Village Police Station Bhiwadi District Alwar Rajasthan (At Present Confined In Jail Alwar) ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Brahma Nand Sandhu For Respondent(s) : Mr. Vijay Singh Yadav, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 07/05/2025 1. The instant application for suspension of sentence is preferred by appellant accused- Rahul in pending appeal preferred aggrieved from order of conviction and sentence dated 04.05.2023 in Sessions Case No. 7/2021 (136/2020) passed by learned Special Judge, POCSO Act cases, no.2, Alwar whereby appellant was convicted for offence under Sections 363, 366, 376AB, 376(2)(N) of IPC and 5(M)/6 and 5(L)/6of POCSO Act and sentenced accordingly. 2. Learned counsel for appellant submits that appellant is an innocent person and he was falsely implicated at the instance of complainant. He further submitted that the trial court has ignored material contradictions in the statement of witnesses which were [2025:RJ-JP:19442] (2 of 4) [SOSA-1070/2023] sufficient to dent the case of prosecution. He further submitted that the report was registered after a delay and no sufficient explanation was offered by prosecution. He further submitted that after registration of FIR, the statement of victim was recorded under Section 161 Cr.P.C. and in her statement Ex. D/1 victim has admitted that she voluntarily left her home. He also submitted that under pressure of parents, forced the victim to change her statement and depose against petitioner. He also referred the medical evidence and submitted that no injuries were found on body of victim and even DNA report has not supported the case of prosecution. He referred cross-examination of victim recorded as PW-1 and submitted that the alleged video captured by accused was not recovered in the instant case and the testimony of victim is not trustworthy. He also submitted that victim has travelled in public area but she has not made any hue and cry to seek assistance from members of general public. At last, he submitted that appellant is in custody and he is young man, and entitled to be released on bail, as the disposal of appeal will take its own time. 3. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted intimation slip to complainant and same is taken on record. 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On the basis of report dated 26.07.2020 about kidnapping of minor daughter, FIR no. 492/2020 under Section 363 IPC was registered at P.S. Bhiwadi. During investigation, victim was recovered on 01.09.2020 and her medical was conducted on [2025:RJ-JP:19442] (3 of 4) [SOSA-1070/2023] 03.09.2020 and a report Ex. P/4 was prepared. The statement of victim was recorded under Section 164 Cr.P.C. and exhibited as Ex. P/5. After investigation a charge-sheet has been filed against the appellant under Sections 363, 366-A, 376 IPC and Section 5(L)/6 of POCSO Act. After framing of charge, the prosecution has examined 16 witnesses and exhibited 26 documents. The accused was examined under Section 313 Cr.P.C. wherein he opted not to submit any defence evidence but exhibited one document Ex. D/1. The appellant accused was convicted under Sections 363, 366, 376AB, 376(2)(n) IPC and Section 5(M)/6, 5(L)/6 of POCSO Act. 6. As per custody certificate, the appellant accused remained in custody from his arrest on 04.09.2020. The period of custody till date is more than four years and eight months. The public Prosecutor has opposed SOS application by filing reply. 7. The father of victim was examined as PW-3, who stated that victim is 12 years old, and her date of birth of father is 08.07.2008. To prove the date of birth prosecution has examined PW-16 Usha Rani (teacher) and she exhibited Ex. P/24 to Ex. P/26. There is no other material other than submitted by PW-16, therefore, the trial court has determined date of birth on the basis of evidence of PW-16. The age of victim on date of incident is less than 12 years. 8. The victim was medically examined by PW-17 and she prepared Ex. P/4 report. In Ex. P/4 no injuries were found on genital/body of victim. The hymen was old torned. The FSL report was exhibited as Ex. P/23 and P/24. It indicate that human semen was detected on underwear of victim but DNA profile is not matching. The statement of victim recorded under Section 164 [2025:RJ-JP:19442] (4 of 4) [SOSA-1070/2023] and exhibited as Ex. P/5 indicate that victim has made allegation of rape against the appellant accused though in her statement under Section 161 Cr.P.C. exhibited as Ex. D/1 the victim has also alleged that the appellant accused has committed rape on 28.05.2020. The victim was examined as PW-1 before trial court and in her deposition she has made it clear that she was raped by present appellant accused. 9. Having considered the fact that age of victim is less than 12 years and she corroborated the incident, therefore, in view of testimony of victim, it is not a fit case wherein the appellant accused be released on bail. The appellant accused was in custody since his arrest and period of custody is nearly 4 years and 8 months but the sentence awarded to appellant is 20 years and age of victim is less than 12 years and she is a child on date of incident, therefore, the appellant accused is not entitled to be released on bail on the basis of period of incarceration. 10. The SOS application preferred by appellant accused is hereby dismissed. 11. List appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /25