[2025:RJ-JP:22804] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1710/2022 In S.B. Criminal Appeal No.2036/2022 Ramprasad Son Of Ramkhiladi, Resident Of Khonchpuri Police Station Mahwa District Dausa (Raj) (At Present Confined In Central Jail, Dausa) ----Appellant Versus State Of Rajasthan, Through P.P. ----Respondent For Appellant(s) : Mr. Manish Gupta with Mr. Keshav Prasad Sharma and Ms. Sweta Soni For Respondent(s) : Mr. Devi Singh PP with Mr. Gaurav Gupta, AGA HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 21/05/2025 1. The instant application for suspension of sentence is preferred by the appellant-applicant accused Ramprasad (hereinafter referred to ‘the appellant’) in pending appeal aggrieved from order of conviction and sentence dated 24.08.2022 in Sessions Case No.6/2020 passed by learned Special Judge, POCSO Act Cases, Dausa whereby the appellant accused was convicted for offence under Sections 366A, 376DA of IPC and Section 5/6 of POCSO Act. The maximum sentence awarded to the appellant accused is 20 years. [2025:RJ-JP:22804] (2 of 9) [SOSA-1710/2022] 2. Learned counsel for the appellant while relying upon the grounds of appeal submits that for incident of 10.10.2019, report Ex.P-1 was registered on 12.10.2019 but without explaining the reasons of delay. He further submits that this report was registered against three persons Ram Prasad, Naresh and Pintu and all were charged for almost same act. He further referred the order dated 18.02.2025 passed by a Co-ordinate Bench of this Court and submitted that 2 out of 3 persons charged were released on bail and now only the present appellant accused is left in custody. He submits that due to some confusion the order with regard to the appellant accused was not passed by Co-ordinate Bench. He submits that the case is identical with Naresh and Pintu and the appellant accused is entitled for grant of suspension of sentence on ground of parity. Learned counsel further submits that as per report submitted by victim, the present appellant accused has committed rape with her but PW-9 Dr. Manisha Meena has medically examined victim on 12.10.2019 and prepared a report Ex.P-3 which indicate that the hymen of victim was intact and there were no visible internal and external injury on genitalia of victim. He further referred cross-examination of PW-9 wherein she admitted that no natural or unnatural intercourse was committed with victim. He submits that delay in lodging the report and evidence of PW-9 are sufficient to discard the oral testimony of victim. 3. Learned counsel has further referred the evidence of victim PW-1, PW-2 brother of victim and School Director PW-3 and submitted that the evidence clearly suggest that victim has deliberately avoided to visit school and when she was caught by [2025:RJ-JP:22804] (3 of 9) [SOSA-1710/2022] school staff while returning with two other boys then she manipulated the story. He also referred contradictions in the evidence of prosecution and submitted that the story narrated by victim is false and she has manipulated the facts to falsely implicate the appellant accused. He also referred the evidence of PW-3 and submitted that due to misconduct by victim, whe was expelled from the school. He also referred the evidence of PW-11 Hitendra Kumar Bhardwaj and submitted that the prosecution has examined a person other than where the victim is currently studied. He submitted that according to PW-11, the admission form Ex.P-21 of victim is different than admission forms of other students. He submits that no document is annexed with Ex.P-21 to show date of birth of victim. He further referred the evidence of PW-5 mother and PW-13 father and submitted that according to cross-examination of parents of victim, the age of victim is not less than 18 years and same is contrary to evidence of PW-11. He submits that the trial Court has erroneously determined the age of victim and treated her as child. He further referred the evidence of PW-16 Prem Singh Meena PW-17 Dinesh Kumar and PW-19 Suman and submitted that these are important witnesses but they have turned hostile and not supported the case of prosecution, which is sufficient to show that the case of prosecution is false and based on untrue facts. Learned counsel has further referred cross- examination of PW-1 and submitted that the contradictions in her statements are sufficient to discard her testimony. The testimony of victim is not trustworthy and on basis of such untrustworthy testimony, the conviction of appellant accused is bad. Learned counsel has further referred flaws in collection of sample and [2025:RJ-JP:22804] (4 of 9) [SOSA-1710/2022] delayed deposition in FSL and submitted that the sanctity in collection and evaluation has already lost its relevance, therefore, a report submitted by FSL cannot be read against the appellant accused. He also referred judgment in case of Prakash Nishad @ Kewat Zinak Nishad v. The State Of Maharashtra : 2023 INSC 561 and submitted that samples were collected on 12.10.2019 for the incident of 10.10.2019 and deposited in FSL on 30.10.2019 but report was prepared on 05.12.2019 and same is contrary to principle of law settled by Hon’ble Supreme Court. He submits that after arrest of accused Ram Prasad and Naresh, samples were collected on 15.10.2019 and deposited on 09.12.2019 which indicated an extra ordinary delay. He further referred evidence of PW-4 Dr. Avdesh Kumar and submitted that even DNA Report was not shown to him for final opinion. Learned counsel has further referred evidence of PW-10 Yogesh Kumar and submitted that on 10.10.2019, the victim has visited his shop to purchase chocolate and from his phone she called on a number which was mentioned by this PW-10 in his evidence. He submits that this call was made in the name of her brother but in fact this call was made to one of the accused, which shows that victim has called accused. He submits that the trial Court without considering and analyzing the evidence has convicted the appellant accused for a heinous offence and same is contrary to material on record. At last, he submits that the appellant accused was on bail during trial and appeal will take its own time. 4. Aforesaid contentions were opposed by learned Public Prosecutor. He has submitted custody certificate along with intimation slip to complainant and a report received from [2025:RJ-JP:22804] (5 of 9) [SOSA-1710/2022] concerned Police Station. He has also placed reliance upon reply filed by the State. 5. Heard learned counsel for the appellant and learned Public Prosecutor. Perused the record. 6 On basis of report Ex.P-1 lodged on 12.10.2019 by PW-1 victim about incident of 10.10.2019, FIR No.576/2019 under Section 376 D of IPC and Section 3/4 of POCSO Act was registered at PS Mahwa District Dausa on 12.10.2019. During investigation, the statement of victim were recorded under Sections 161 and 161 CrPC and was medically examined by PW-9. All three accused were arrested and afterwards a charge-sheet has been filed against them. After framing the charge, the prosecution has examined 24 witnesses and exhibited 37 documents. The accused were examined under Section 313 CrPC and they have submitted one DW-1 Bablu Ram in defence evidence and exhibited three documents. The present appellant accused Ram Prasad and Naresh were convicted under Section 366A, 376D IPC and Section 5/6 of POCSO Act whereas Pintu under Section 376B IPC and Section 5/6 of POCSO Act. 7. A Co-ordinate Bench of this Court has allowed suspension of sentence application of Naresh and Pintu on 18.02.2025. This appellant accused was on bail during trial in pursuant to order dated 20.10.2020 in bail application No.11307/2020 passed by a Co-ordinate Bench of this Court. Presently, this appellant accused has served more than 4 years 4 months and 19 days against awarded sentence of 20 years. 8. A perusal of report Ex.P-1 filed by PW-1 indicate that this report was registered after a delay of two days and in this report 3 [2025:RJ-JP:22804] (6 of 9) [SOSA-1710/2022] persons were named but allegation of rape was made against Ram Prasad. The victim was examined under Section 164 CrPC and in Ex.P-6 recorded on 14.10.2019, victim has stated that she was sexually assaulted by Naresh and Pintu, who allegedly committed fingering but she stated that Ram Prasad has committed penetrative sexual assault with her and thereafter Ram Prasad has dropped her. This victim was medically examined by PW-9 Dr. Manisha Meena and prepared a report Ex. P-3. The report and evidence of PW-9 indicate that hymen was intact but before her examination, the victim has already taken bath. The examination indicate that there was no internal injury on genitalia and her hymen was intact though a redness was present. 9. The rape is defined as a sexual assault which involves sexual intercourse or other form of penetration without a person’s consent. An examination of the hymen is not an accurate or a reliable test of a previous sexual assault. Most of the experts advise to avoid to describe the terms such as “intact hymen or torn hymen”. The findings are not based on international standards of examination of rape, therefore, as a Judge we cannot accept the theory of test of virginity. The contention of learned counsel about evidence of PW-9 and report Ex. P-3 cannot be accepted as same does not confirms to international standards. 10. Here in this case, a redness was present and same is sufficient to show some kind of sexual assault was committed with victim. An act of rape cannot be judged on basis of further corroborative test either by medical expert or any other. 11. The age of victim was determined by the trial Court after considering the evidence available on record and the victim was [2025:RJ-JP:22804] (7 of 9) [SOSA-1710/2022] less than 16 years of age on date of incident. The grounds raised by the learned counsel about the age can be considered at the time of final adjudication and not this stage but looking to the findings of the trial Court we can certainly presume that the age of victim was less than 16 years on the date of incident. 12. The victim in her report Ex.P-1 and her statement under Section 164 CrPC and as a witness before the trial Court has named the appellant accused Ram Prasad for committing penetrative sexual assault with her. We have considered her cross- examination, wherein also involvement of present appellant accused is further corroborated by her. Since the age of victim is less than 16 years, therefore, her consent is immaterial. Similarly, if there is any manipulation then the manipulation is again a part of consent and same is again immaterial where the age of victim is less than 16 years. Learned counsel has referred evidence of PW-10, PW-16, PW-17, PW-19 and DW-1 but helpful only when the age of victim is above 18 years but not in case when age of victim is less than 18 years. Similarly, if victim has bunk the school and she was caught by PW-3 or by her brother PW-2 even then the age of victim is a material fact and the consent for any physical relation depend on age. The circumstances or discrepancies in evidence helps the accused when victim is competent enough to understand the consequence of the act. Herein, law provides that the consent of the victim is immaterial when she is below 18 years and all such defence is not helpful at this stage. The grounds can be considered at the time of final adjudication but not now. [2025:RJ-JP:22804] (8 of 9) [SOSA-1710/2022] 13. Learned counsel has further referred the process of collection of sample and deposition and evaluation and we have considered the judgment in case of Prakash Nishad @ Kewat Zinak Nishad v. The State Of Maharashtra (supra) wherein Hon’ble Supreme Court on basis of merits of the case has discarded the report of FSL/DNA. Here in this case, the victim has supported the case of prosecution and moreover the report Ex.P-37 indicate that semen was detected on salwar of victim whereas Ex.P-36 indicate that the DNA profile detected from salwar of victim is matching with DNA profile of the appellant accused. The grounds raised by learned counsel can be considered at final stage, therefore, the FSL report is not a ground to grant suspension of sentence. The appellant accused is in custody for last more than 4 years 4 months and he was on bail during trial but the petitioner accused was convicted by the trial Court and the age of victim is less than 16 years. The present accused is main accused in the case, who committed rape with victim. 14. Very recently in case of Balram Dangi Vs. Veer Singh Dangi and Ors. : Criminal Appeal No.2000/2025 (Order: 16- 04-2025) while considering the judgment in case of Omprakash Sahni vs Jai Shankar Chaudhary And Anr. Etc.: (2023) 6 SCC 123 in light of provision under Section 389 of CrPC, Hon’ble Supreme Court has set aside a suspension of sentence order passed by the High Court as untenable of settled legal position. 15. Having considered the entirety and facts and circumstances of the case, I am of considered view that the case of present appellant accused is on different footing than other co-accused Naresh and Pintu, therefore, the appellant accused is not entitled [2025:RJ-JP:22804] (9 of 9) [SOSA-1710/2022] to get benefit of suspension of sentence order passed in favour of naresh and Pintu. Thus, looking to gravity and heinousness of offence, the instant suspension of sentence application is liable to be dismissed. 16. In view of discussion made hereinabove, the instant suspension of sentence application preferred by Ramprasad is hereby dismissed. 17. List the appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J MR/88