[2025:RJ-JP:16328] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1326/2023 In S.B. Criminal Appeal No.2129/2023 Golu Alias Ravindra S/o Nemi Chand, Resident Of Mamchari, P.S. Mamchari District Karauli (Aj) (At Present Confined In Central Jail, Sevar District Bharatpur (Raj.) ----Appellant Versus State Of Rajasthan, Through P.P ----Respondent For Appellant(s) : Mr. Rajneesh Gupta with Mr. Ravindra Mavliya For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 16/04/2025 1. The instant suspension of sentence application is preferred by the appellant accused in pending appeal filed aggrieved from judgment of conviction and sentence dated 25.07.2023 in Sessions Case No.14/2023 passed by learned Special Judge, POCSO Act Cases, Karauli, whereby the accused appellant (CCL) is convicted under Sections 376 (AB) of IPC and Section 5(M)/6 of POCSO Act and further sentenced to undergo rigorous imprisonment of 20 years but looking to age of appellant, he was allowed to stay in special home till attaining the age of 21 years. 2. Learned counsel for the appellant while relying upon grounds of appeal submits that the date of birth of juvenile is 10.06.2006 [2025:RJ-JP:16328] (2 of 5) [SOSA-1326/2023] and his age is 16 to 18 years on the date of incident. He further submitted that only after preliminary assessment, the case of accused appellant was referred to the children court. He also submits that victim and her mother, both were examined by prosecution and both have turned hostile. He further referred the statement of grand parents and uncle of victim and submitted that all three have declared hostile and not supported the case of victim. He further referred the medical report and submitted that even no injury was found on genital of victim. He further referred the prosecution evidence and submitted that none of the witness has supported the case of prosecution and without any positive oral evidence, the trial court has convicted the appellant only on basis of FSL report. He further referred the statements of PW-14, Investigating Officer PW-13 along with PW-10 and PW-12 and submitted that the collection of seizure of sample is not proper. There was a delay in deposition of sample. He also submits that the sample was not taken in custody of police on the same day when the same was collected. He further submits that the sample were kept unattended for more than one day and same is sufficient to discard FSL Report. At last, he submitted that the trial court has committed serious error while convicting the present appellant without any evidence and looking to age and future of appellant, he is entitled to be released on bail. 3. Aforesaid contentions were opposed by learned Public Prosecutor. He submits that a reply has already been filed on record. 4. Heard learned counsel for the appellant and learned Public Prosecutor and perused the record. [2025:RJ-JP:16328] (3 of 5) [SOSA-1326/2023] 5. On basis of a report Ex.P-5 dated 01.12.2022 about forcible rape with six years old victim by the present appellant, FIR No. 40/2022 was registered at Police Station Mamchari, District Karauli under Section 376(AB) of IPC and Section 5/6 of POCSO Act. During investigation, the statement of victim was recorded under Section 164 CrPC on 03.12.2022 and same is exhibited as Ex.P-10. The victim was medically examined and report Ex.P-2 was prepared on 01.12.2022. The appellant was detained on 03.12.2022. After investigation, a charge-sheet has been filed against the appellant before the Juvenile Justice Board (JJB), Karauli. 6. After preliminary assessment on 14.02.2023, the matter was referred/transferred to learned Special Judge, POCSO Act Cases, Karauli. After framing charges, 17 witnesses were examined by prosecution and 37 documents were exhibited. The appellant was examined under Section 313 CrPC and he opted not to file any defence evidence. Learned trial court has convicted the appellant accused. 7. A perusal of record indicate that the age of victim was around 6 years and same was proved by PW-5 Anita by producing ExP-4 and Ex.P-11. As per record, the date of birth of victim is 11.06.2016, thus, the victim is six years of age on the date of incident. 8. The victim was examined as PW-3 before the trial court. Victim has identified the appellant but she has not narrated any incident against the appellant but she made it clear that she was afraid of the appellant and she cried, so she went to her her [2025:RJ-JP:16328] (4 of 5) [SOSA-1326/2023] grandmother. Victim has admitted about recording her statements before the Magistrate and Police. 9. We have gone through the cross-examination of victim and her mother and statement of another witness, who is also a six years old child and examined as PW-4. Mother of victim was examined as PW-1 and she turned hostile. Similarly, father of victim was examined as PW-2 and he also turned hostile. Grand parents of victim were examined as PW-6 and PW-7 and both have turned hostile. PW-8 uncle of victim has also turned hostile and not supported the case of prosecution. Thus, PW-1 to PW-4 and PW-6 to PW-8 have not supported the case of prosecution and they have turned hostile. 10. PW-14 Dr. Anita Meena examined victim on 01.12.2022 and prepared a report Ex.P-2 and as per report Ex.P-2, her hymen was ruptured and there were sign of forcible intercourse with victim. This PW-14 has collected samples and sealed the same in three packets, though, there was no injury mark on other parts of body. These samples were deposited in malkhana by PW-16 on 02.12.2022. PW-10 Manoj Kumar has deposed that on 02.12.2022, he collected sample from Government Hospital, Karauli and handed over the same to the Investigating Officer. PW- 13 Kishore Butolia has seized 3 packets on 02.12.2022 by Ex.P- 19. As per PW-14 Dr. Anita Meena, these 3 sealed packets were handed over to police. 11. The evidence of PW-14, PW-10, PW-13 and PW-16 have to be read together about collection of sample and deposition of sample. The trial court after considering the evidence on record has believed the FSL/DNA Report Ex.P-37 wherein the conclusion [2025:RJ-JP:16328] (5 of 5) [SOSA-1326/2023] indicate that the DNA profile of accused appellant is matching with DNA profile obtained from human semen found on skirt of victim. Similarly, DNA profile of victim is matching with DNA profile obtained from underwear of accused appellant. 12. Having considered the fact that victim is around six years of age and she was subjected to penetrative sexual assault by accused though victim and her family members have turned hostile but looking to evidence on record, this is not a fit case wherein suspension of sentence can be allowed. 13. In view of aforesaid, the instant application for suspension of sentence preferred by appellant accused (CCL), is hereby dismissed. 14. List the appeal for hearing in the month of August, 2025. (ASHOK KUMAR JAIN),J MR/31