[2025:RJ-JP:27228] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 18/2024 in S.B. Criminal Appeal No.40/2024 Akram Khan S/o Late Shri Sharif Khan, Aged About 21 Years, R/o Near Masjid Sapotara, Police Station Sapotara District Karauli, Presently Tenant Chacha Ki Char Dukan, Madeena Nagar, Aksha Masjid Kho Nagoriyan, Jagatpura Road, Police Station Kho Nagoriyan, Jaipur (East) Raj (At Present Confined In Central Jail, Jaipur) ----Petitioner Versus 1. State Of Rajasthan, Through P.p 2. Victim, R/o ----Respondents For Petitioner(s) : Mr. Mohd. Umar Farooq For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 12/07/2025 1. Instant SOS application is preferred by appellant accused Akram Khan in pending appeal filed aggrieved from judgment of conviction and sentence dated 10.10.2023 in sessions case no. 18/2023 passed by learned Special Judge, POCSO Act cases no.3, Jaipur Metropolitan-I whereby appellant accused was convicted and sentenced under Sections 363, 366, 376(3) read with Section 376(2)(n) of IPC and Section 3/4, 5/6 of POCSO Act. The maximum sentence awarded to present appellant is 20 years. 2. Learned counsel for appellant while relying upon grounds of appeal submitted that the appellant is an innocent person and he [2025:RJ-JP:27228] (2 of 5) [SOSA-18/2024] was falsely implicated. He further submitted that report Ex. P/13 was lodged on 19.11.2022 under Section 363 IPC. after a delay and victim was recovered on 30.11.2022 and complainant himself produced victim at police station. He further submitted that three date of birth of victim were brought on record firstly 01.01.2004 mentioned in Aadhar card, 01.01.2006 mentioned in another Aadhar Card and 15.08.2007 as per school record. He also submitted that the evidence on record clearly suggested that the age of victim is more than 20 years on date of incident. He specifically referred statement of victim recorded as PW-1 and submitted that the age of victim is 20 years, and has a document to show herself as an adult female but to frame appellant accused under the POCSO Act fabricated record is produced by the prosecution. He further referred statement of PW-5 (mother) and PW-11 (father) and submitted that the age document is not produced by them and considering length of their marriage, the age of victim is around 20 years. He further submitted that in her statement under Section 161 Cr.P.C. victim has not alleged rape by the appellant accused. He further submitted that both victim and accused were regularly communicating on chats and calls and same is admitted by victim. He also submitted that neither there is any CDR nor any locational trace record to show that victim was forced to indulge in sexual relation with accused. He further referred mark-1 document and cross-examination of PW-1 victim and submitted that both appellant and accused have executed a document for live-in relationship and with consent of victim both were living together. He further referred the record and submitted [2025:RJ-JP:27228] (3 of 5) [SOSA-18/2024] that neither there is any FSL nor DNA report or medical report to show use of force or rape by accused. He further referred period of custody and submitted that the appellant accused is in custody for more than 2 years and 9 months and disposal of appeal will take time. 3. Aforesaid contentions were opposed by learned public prosecutor and he submitted latest custody certificate. None present on behalf of complainant. Though the power is filed on behalf of complainant but we are considering reply of State filed to oppose the application of SOS. 4. Heard learned counsel for appellant and learned public prosecutor. Perused the record. 5. On the basis of report Ex. P/13 lodged by PW-11 (father of victim) on 19.11.2022, FIR no. 738/2022 was registered at P.S. Shivdaspura, Jaipur Metropolitan (South) under Section 363 IPC. During investigation victim was recovered on 30.11.2022 and her statement under Sections 161 and 164 Cr.P.C. were recorded and she was medically examined. After investigation charge-sheet has been filed against appellant accused. After framing of charge prosecution has examined 11 witnesses and exhibited 25 documents and accused was examined under Section 313 Cr.P.C. but he has not submitted any defence evidence and he exhibited five documents in defence. 6. The trial court has determined the age of victim on the basis of date of birth record submitted by PW-10 Ramanuj Katiyar. As per evidence of PW-10 victim has taken admission in Class-I and he exhibited admission form Ex. P/20 and scholar register as P/19. [2025:RJ-JP:27228] (4 of 5) [SOSA-18/2024] The trial court after considering the entire evidence has believed the evidence of PW-10 and determined date of birth as 15.08.2007. Thus, the age of victim is less than 16 years on date of incident as per school record. Learned counsel has referred other evidence based on Aadhar and we have considered the evidence as referred by learned counsel but Aadhar is not an authorized document to determine the age of victim. The age of victim can be determined in accordance with Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. Thus, the victim is less than 16 years on date of incident and the grounds raised by learned counsel can be considered at the time of final adjudication. 7. We have considered the statement of victim recorded under Section 161 Cr.P.C. just after her recovery and exhibited as Ex. D/1. We have also considered statement of victim recorded under Section 164 Cr.P.C. and exhibited as Ex. D/2. The prosecution has also examined PW-2 Khushiram along with record relating to visitors register of hotel Ex. P/1. During evidence three documents, copies of Aadhar Card of victim and accused and affidavit indicating relationship between victim and accused were exhibited as Mark-1 to Mark-3. The document Ex. D/3-A visitor register of hotel is also exhibited and we have considered the entire evidence but the age of victim is less than 16 years and consent is immaterial under the law. 8. The appellant accused remained in custody since his arrest and period of custody is more than 2 years 8 months and 23 days. The age of victim clearly indicate that she is not in a position to [2025:RJ-JP:27228] (5 of 5) [SOSA-18/2024] understand her well beings. Thus, looking to age of victim, the appellant accused is not entitled to be released on bail (SOS). 9. Thus, the instant application for suspension of sentence preferred by appellant accused Akram Khan is hereby dismissed. 10. List appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /4(SOSA)