[2025:RJ-JP:18496] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 974/2024 in S.B. Criminal Appeal No. 406/2024 Ravindra S/o Shri Kailash, Aged About 24 Years, R/o Ward No 31, Chhota Bajar Buchaheda, Kaswa Kotputli, District Jaipur (At Present Under Judicial Custody Central Jail Jaipur) ----Petitioner Versus 1. State Of Rajasthan, Through P.p 2. Jai Singh S/o Jagdish Prasad, Aged About 35 Years, R/o Chhota Bajar Kotputli District Jaipur Gramin Rajasthan ----Respondents For Petitioner(s) : Mr. R.B. Sharma Ganthola For Respondent(s) : Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 01/05/2025 1. Instant SOS is preferred in pending appeal, filed against the order of conviction and sentence dated 02.02.2024 in Sessions Case No. 26/2021 passed by learned Special Judge, POCSO Act cases, Jaipur District, whereby appellant accused has been convicted under Sections 454, 506 IPC and 3/4(2) of POCSO Act alternatively under section 376(3) IPC and sentenced accordingly. 2. Learned counsel for petitioner accused while placing reliance upon grounds of appeal submitted that herein this case, incident is of 04.01.2021 and on 06.01.2021 this incident was disclosed to mother of victim by PW-3 Jyoti (neighbour) but FIR was registered [2025:RJ-JP:18496] (2 of 5) [SOSA-974/2024] on 12.01.2021 and the prosecution has failed to explain reasons of delay in reporting the matter to police. He further submitted that PW-3 Jyoti, who disclosed the incident to mother of victim was examined by prosecution and she turned hostile and not supported the case of prosecution. He further submitted that after the incident victim was medically examined by PW-6 Dr. Sarika Yadav and she did not find any abnormality or injuries upon genital of victim. He further referred the record and submitted that even the incident was not corroborated by DNA or FSL report. He further raised doubt on age of victim and submitted that as per father of victim, PW-2 victim born in hospital in Gurugram but birth certificate is not produced by prosecution to establish the age of victim. He submitted that PW-10 Sarla Devi (teacher) was examined by prosecution and she deposed that on the basis of affidavit Ex. P/11 submitted by father of victim the date of birth was 12.07.2007 was recorded by school. He further submitted that recording of such date of birth from estimation is not permissible under the law and the trial court has committed serious error while determining the age of victim, on basis of said evidence. He further submitted that if prosecution has failed to prove the date of birth of victim then the accused is entitled for benefit of doubt. He further referred the evidence of victim PW-1 and submitted that no recovery of photo was made from possession of accused and the deposition of victim clearly indicate that she is not a trustworthy witness. He further submitted that the victim has deposed that the family of victim used to take money as an advance from accused and it indicate that the family of victim is not required to return the money so that a case was [2025:RJ-JP:18496] (3 of 5) [SOSA-974/2024] registered against the accused. At last, he submitted that the petitioner accused is a young person, who is in custody for last more than 4 years and five months and disposal of appeal will take its own time and he is entitled to be released on bail, as disposal of appeal will take its own time. 3. Aforesaid contentions were opposed by learned Public Prosecutor. Learned Public Prosecutor has submitted that complainant was already informed. He also submitted custody certificate and same is taken on record. 4. On the basis of report Ex. P/2 submitted by PW-2 (father of victim) FIR no. 37/2021 under Sections 376, 454, 506 IPC and Section 3/4 of POCSO Act was registered at P.S. Kotputli, District Jaipur (Rural). During investigation victim was medically examined on 12.01.2021 and report Ex. P/4 was prepared by PW-6. The statement of victim was recorded under Sections 161 and 164 of Cr.P.C. Accused was arrested on 15.01.2021, and after investigation, a charge-sheet has been filed against him. 5. After framing of charge, the prosecution has examined 15 witnesses and exhibited 17 documents. One document was exhibited by Court as Ex. C/1. Accused was examined under Section 313 Cr.P.C., wherein he opted not to submit any evidence in defence. Learned trial court has convicted petitioner accused under Sections 454, 506 IPC and Section 3/4(2) of POCSO Act alternatively under Section 376(3) IPC. The maximum sentence awarded to petitioner is 20 years. The prosecution has claimed that the date of birth of victim is 12.07.2007 and to establish this date of birth the prosecution has examined PW-10 Sarla Devi, a school teacher. PW-10 has exhibited P/8 to P/11 and deposed that [2025:RJ-JP:18496] (4 of 5) [SOSA-974/2024] on the basis of affidavit submitted by father of victim, the date of birth at the time of admission was recorded as 12.07.2007. 6. We have considered the cross-examination of PW-10. On this issue, PW-2 (father of victim) was also examined and we have considered cross-examination of PW-2 as well. The trial court has considered the cross-examination of PW-2 and PW-10. There is no other suggestion about date of birth. In FIR, the age of victim was recorded as 9 years whereas the trial court after considering the evidence both documentary and oral concluded that on date of incident the age of victim is 13 years and 6 months which means victim was less than 14 years of age. 7. It was PW-3 Jyoti, who informed mother of victim about incident but she has turned hostile and not supported the case of prosecution. The statement of Jyoti remained inconclusive on 04.12.2024 but later her statement was concluded as per order- sheet dated 20.06.2023 though this fact was not mentioned in statement of PW-3. The incident is of 04.01.2021 and it was reported to police on 12.01.2021. This issue was raised before the trial court and after considering the evidence, the Court was of the opinion that the delay does not impact the case of prosecution. The statement of victim was recorded under Section 164 Cr.P.C. on 15.01.2024 and exhibited as Ex. P/1. The victim was medically examined on 12.01.2021 and no abnormality was found according to PW-6. The victim has corroborated the incident from her statement just after the registration of case to the deposition before the Court and she remained firm in every statement. 8. In Ex. P/2 it was mentioned that on 06.01.2021 the health of victim deteriorated and she was taken to BDM Hospital and later [2025:RJ-JP:18496] (5 of 5) [SOSA-974/2024] to SMS Jaipur and on 10.01.2021 returned after treatment. It was further mentioned by PW-2 in his deposition, who is father of victim but no document is filed on record to show that due to bad health, victim was taken to hospital. The mother of victim PW-5 was also examined and in her cross-examination she also mentioned the same fact. PW-12 brother of victim was also examined by prosecution in support of incident on 04.01.2021. We have also considered the statement of PW-15 Ravindra (Investigating Officer). Herein, the medical record is not supportive for victim but victim and her family remained firm. The grounds raised by learned Counsel can be considered at the time of final adjudication. 9. Having considered the fact that victim has supported the case and her age is less than 14 years, therefore, looking to gravity and seriousness of offence, the petitioner is not entitled to be released on bail. The petitioner is in custody for more than 04 years 05 months but same is not sufficient to allow SOS. 10. Hence, the instant application for suspension of sentence is hereby dismissed. 11. List for hearing of appeal in the month of August, 2025. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /6