[2025:RJ-JP:20458] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 930/2025 In S.B. Criminal Appeal No.3344/2024 Ankit S/o Lakshminarayan @ Lala, R/o Warpada Karauli Police Thana Kotwali District Karauli (Raj) (At Present Confined In District Jail Bharatpur) ----Petitioner Versus 1. State Of Rajasthan, Through P.p 2. Victim, Aged About 15 Years, R/o ----Respondents For Petitioner(s) : Mr. Mahesh Sharma with Ms. Harshita Sharma, Mr. Deepak Siddh, Mr. Vivek Yadav, Mr. Tushar Sharma and Ms. Anukriti Sharma For Respondent(s) : Mr. Abdul Rahim Khan Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 14/05/2025 1. Instant SOS is preferred by applicant-accused Ankit S/o Lakshminarayan @ Lala in pending appeal filed aggrieved from judgment of conviction and sentence dated 21.10.2024 in Sessions Case No.50/2024 passed by learned Special Judge (POCSO Act, Cases) Karauli, whereby the applicant-accused was convicted and sentenced under Sections 450, 376 (3), 323 IPC and Section 3/4 (2) of POCSO Act. The maximum sentence awarded to applicant-accused is 20 years. 2. Learned counsel for applicant while relying upon grounds of appeal submits that applicant is an innocent person and was [2025:RJ-JP:20458] (2 of 6) [SOSA-930/2025] falsely implicated by family of victim. He referred the Ex.D-3 to D- 7 and submitted that on 24.02.2024, the applicant-accused was caught by crowd including family members of victim and without any reason, manhandled and gave beatings to him, which resulted into injuries upon body of applicant. He further submitted that on call, police reached at the spot and saved applicant from angry crowd and later, he was arrested under Section 151 Cr.P.C. and released on bail. He further submitted that the incident report registered by police clearly shows that there was no complaint of any rape or sexual assault with any minor girl. He further submitted that afterwards, the mother of victim has registered a report in Police Station for house trespass and sexual assault with victim, but no allegations of rape were made against the applicant. He further submitted that after this report, the mother of victim and victim, both have submitted report to the police, making further improvements in earlier version and alleged that victim was raped by applicant-accused in house of victim. He further submitted that after intervention by police, the applicant-accused was medically examined and as an injury report Ex.D-8 was prepared, which indicate that accused has suffered several injuries. He further referred the investigation and submitted that after the improvement in the version of victim and her mother, a charge-sheet was filed by police under Sections 376 and 3/4 POCSO Act. He also referred the statement of victim PW-4 and submitted that the Trial Court has ignored the material contradictions in her cross-examination and drawn an erroneous conclusion. He further referred the contradictions and discrepancies in the statement of PW-3 father of victim, PW-14 [2025:RJ-JP:20458] (3 of 6) [SOSA-930/2025] aunty of victim and PW-15 cousin of victim and submitted that the discrepancies clearly reflect that the story narrated by prosecution is not trustworthy. He further referred the statement of PW-2 mother of victim and compared it with PW-4 victim and submitted that denial of victim about communication or call with applicant- accused, is answered positively by her mother. He submitted that the victim was used to call applicant-accused and on the fateful day, the victim has called and invited the accused to her home, but under the family pressure, she denied to make a call to applicant-accused. He further referred the facts of the case and submitted that there is no evidence of rape as the victim, who was examined by PW-12 Dr. Reena Meena, has not found any injury on genital or body of victim. He further submitted that when there is no sign of forcible rape with victim then the evidence of prosecution is not trustworthy. He further placed reliance upon judgment in case of Prakash Nishad @ Kewat Zinak Nishad Vs. The State of Maharashtra 2023 INSC 561 and submitted that there is a serious discrepancy in collection of sample and an extraordinary delay in deposition of sample to FSL, therefore, the FSL report cannot be relied to convict the applicant-accused. At last, he submitted that applicant-accused is a young person and he is in custody for more than 1 year and he is entitled to be released on bail and the disposal of appeal will take its own time. 3. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned Public Prosecutor has submitted custody certificate along with report received from concerned Police Station and same are taken on record. Learned counsel for complainant submitted that accused [2025:RJ-JP:20458] (4 of 6) [SOSA-930/2025] was caught while committing rape with minor victim and age of victim is less than 16 years. 4. Heard learned counsel for applicant and learned Public Prosecutor. Perused the record. 5. On basis of report Ex.P-5 submitted by PW-4 victim about sexual assault by present applicant-accused on 24.02.2024 at her home, FIR No.37/2024 was registered at Mahila Thana, District Karauli on 24.02.2024 under Sections 323, 341, 354, 354A, 452 IPC and 7/8 POCSO Act. After investigation, victim was medically examined for injuries and also for rape. The statement of victim was recorded under Sections 161 and 164 Cr.P.C. After investigation, police has filed a charge-sheet against the applicant- accused. 6. Prior to arrest of applicant-accused in FIR No.37/2024, the applicant-accused was arrested under Sections 107 and 151 of Cr.P.C. and produced before the SDM, Karauli and was released on execution of bail bonds to maintain peace. The statement of victim was recorded under Section 164 Cr.P.C. and named applicant- accused for committing rape with her. Later, a charge-sheet was filed against the applicant-accused under Sections 323, 341, 354, 354-A, 450, 376 (3) IPC and Sections 7/8 and 3/4 of POCSO Act. After framing the charge, the prosecution has examined 18 witnesses and exhibited 20 documents. The applicant-accused was examined under Section 313 Cr.P.C. and in defence, he appeared as a defence witness DW-1 and exhibited 8 documents. On basis of record applicant-accused was convicted, by the Trial Court. 7. The first issue is age of victim. The Trial Court has determined the age of victim on basis of DoB 21.10.2009 proved [2025:RJ-JP:20458] (5 of 6) [SOSA-930/2025] by PW-1 Mukimur Rahaman after production of Ex.P-1 to Ex.P-3. The birth certificate of victim was produced and exhibited as Ex.P- 1, the Trial Court has concluded the age of victim was less than 16 years. The objection of learned counsel for applicant about the age of victim can be considered at the stage of final adjudication. 8. The record also indicate that initially, the applicant-accused was arrested under Section 151 Cr.P.C., but simultaneously, a report was filed on very same day about sexual assault upon victim but in first report registered by victim, no allegation of rape were made, but in her statement, she has made allegations of rape and while examination as PW-4, she maintained that she was raped by applicant-accused at her house. The father of victim PW- 3 and cousin PW-15, both reached at home when present applicant-accused was in the room, where rape was committed. The angry crowd wants to take law in their hands and same is evident from Ex.D-8. From the Ex.D-7 Daily Diary Report (DDR) and Ex.D-5 complaint, it is evidence that the applicant-accused has also tried to intimated other persons, who manhandled the applicant-accused in the house of victim. In the instant case, initially the allegations of rape were not made and nothing was found in medical report, but victim has made it clear from her statement under Section 164 Cr.P.C. to the Court that applicant- accused has committed rape with her. The surrounding circumstances, which can be drawn from evidence of PW-3, PW-14 and PW-15, it is also established that the applicant-accused was locked in a room with victim in the house of complainant. A detailed discussion at this stage is not possible, which may affect the merits of the case. [2025:RJ-JP:20458] (6 of 6) [SOSA-930/2025] 9. Since, victim is a minor and she supported the prosecution, therefore, we have to consider the issue on the basis of fact that age of victim is less than 16 years on date of incident. Herein this case, learned counsel for applicant referred the judgment in case of Prakash Nishad @ Kewat Zinak Nishad Vs. The State of Maharashtra (supra), wherein Hon’ble Supreme Court on basis of discrepancies has disbelieved the FSL report. Herein this case, the FSL report indicate that DNA profile of accused is accounted in mixed DNA obtained from Pyjama of victim. The applicability of judgment and the grounds requires consideration at the time of final adjudication. 10. Herein this case, the age of victim is less than 16 years and looking to her age, we cannot presume that it is a case of consent. The applicant-accused himself examine as DW-1 and we have considered his cross-examination, wherein his admission indicate that he visited the house of victim on 24.02.2024 (alleged date of incident). The applicant-accused is in custody and total period of custody is more than one year, but looking to the fact that victim is 16 years of age, it is not a fit case to enlarge the applicant- accused on bail. 11. In view of the discussion made hereinabove, the SOS application preferred by applicant-accused Ankit S/o Lakshminarayan @ Lala is hereby dismissed. 12. Misc. application, if any, stands disposed of. 13. List criminal appeal for hearing in the month of December, 2025. (ASHOK KUMAR JAIN),J GAURAV /42