[2025:RJ-JP:20457] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 421/2023 In S.B. Criminal Appeal No.391/2023 Mayank Soni @ Tonu S/o Ganesh Kumar Soni, Aged About 23 Years, R/o Bhandaheda, Thana Kethun Dist. Kota Rural At Present Tenant Jagdish Meena Ka makkan, Near Badi Masjid Annantpura Thana Annantpura Kota (At Present Accused Appellant Is Confined At Central Jail Kota) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Petitioner(s) : Mr. Shivraj Chauhan For Respondent(s) : Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 14/05/2025 1. Instant SOS application is preferred by applicant-accused Mayank Soni @ Tonu S/o Ganesh Kumar Soni in pending appeal filed aggrieved from judgment of conviction and sentence dated 09.02.2023 in Sessions Case No.162/2021 passed by learned Special Judge (POCSO Act, Cases) No.4, Kota, whereby the applicant-accused was convicted under Section 376 (3) IPC and Section 5(L)/6 POCSO Act. The maximum sentence awarded to applicant is 20 years. 2. Learned counsel for applicant while relying upon grounds of appeal submits that applicant is an innocent person and he was falsely implicated by complainant. He further submitted that on basis of complaint filed by complainant, an FIR was registered [2025:RJ-JP:20457] (2 of 4) [SOSA-421/2023] under Section 363 IPC and after recovery of victim, her statement under Section 164 Cr.P.C. was recorded, wherein she categorically stated that she voluntarily left her house and was a consenting party in the entire incident. He further submitted that after recovery, the victim was medically examined by PW-1 Dr. Sanjana Jorwal and no injuries were found on genital or body of victim. He further referred the statement of PW-2 Jaya Dhawan (teacher) and submitted that neither birth certificate nor affidavit was taken from parents at the time of admission. He further referred the statement of victim PW-7 and submitted that the victim was having friendship with present applicant and regularly remained in touch with him. He also submitted that victim has traveled in public places, but not raised any alarm to seek assistance from anyone. He further referred the statement of PW-9 Haricharan, PW-11 Faizan Agha and submitted that the behaviour and conduct of victim while staying in hotel was normal and was not under stress. He also submitted that the cross-examination of mother of victim PW-8 indicate that after recovery of victim, she did not stayed with her parents. He also referred the statement of father of victim PW-6 and submitted that both applicant and victim were chatting on Instagram, was in the knowledge of PW-8 mother of victim. He also referred the evidence of parents and submitted that the age of victim was not established beyond doubt and the Trial Court has committed serious error while determining the age of victim, as less than 16 years. At last, he submitted that appellant-accused is in custody since 10.03.2021 and the period of custody is more than 4 years and 5 months, so he is entitled to be released on bail, as disposal of appeal will take its own time. [2025:RJ-JP:20457] (3 of 4) [SOSA-421/2023] 3. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted that custody certificate and same is taken on record. He placed reliance upon reply submitted by State. 4. Heard learned counsel for applicant and learned Public Prosecutor. Perused the record. 5. On basis of report Ex.P-14 dated 02.03.2021 FIR No.108/2021 under Section 363 IPC was registered at P.S. Annantpura, District Kota. During investigation, victim was recovered on 07.03.2021, and statement under Sections 161 and 164 Cr.P.C. were recorded. The medical of victim was conducted and after investigation, police has filed a charge-sheet against the applicant-accused. After trial, the prosecution has examined 16 witnesses and exhibited 35 documents. The applicant-accused was examined under Section 313 Cr.P.C. and he himself examined as defence witness DW-1. Two documents were exhibited by him. The Trial Court has convicted the applicant-accused under Section 376 (3) IPC and Section 5(L)/6 of POCSO Act. The maximum sentence awarded to applicant-accused is 20 years. 6. After recovery, victim was medically examined by PW-1 Dr. Sanjana Jorwal and prepared report exhibited P-1, which shows that hymen was torned and healed. There was no injuries on genital or body of victim. The FSL report was exhibited as Ex.P-32, wherein human semen detected on underwear of victim and after DNA examination, DNA profile of accused was accounted in the mixed DNA profile obtained from stains detected on underwear of victim. [2025:RJ-JP:20457] (4 of 4) [SOSA-421/2023] 7. The age of victim was proved by PW-2 Jaya Dhawan and she has exhibited admission form Ex.P-3, birth certificate Ex.P-4, S.R. Register Ex.P-5, certificate Ex.P-6, and the chain of documents are available on record. The Trial Court has determined the DoB of victim as 26.01.2007 and age of victim on date of incident between 14 to 15 years. Thus, the victim was less than 16 years on date of incident. After recovery, the statement of victim was recorded under Section 164 Cr.P.C., wherein she stated that she voluntarily left her home with applicant-accused. In defence DW-1 has also pleaded that the victim has voluntarily left her house. Herein this case, the Trial Court has already acquitted the applicant-accused from charge under Sections 363 and 366 IPC, but convicted under Section 376 (3) IPC and Section 5(L)/6 of POCSO Act. The consent of victim is immaterial, as her age is less than 16 years. Herein this case, it is also on record that ID of sister of accused was used by accused to stay with victim in hotel. The consent in the instant case is immaterial as the victim was minor and her age is less than 16 years. The applicant-accused is in custody for last more than 4 years and 5 months, but same is not sufficient to release applicant-accused on bail (SOS). 8. In view of discussion made herein above, the SOS application preferred by applicant-accused Mayank Soni @ Tonu S/o Ganesh Kumar Soni is herey dismissed. 9. Misc. application, if any, stands disposed of. 10. List criminal appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J GAURAV /23