[2025:RJ-JP:22165] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 549/2025 In S.B. Criminal Appeal No.759/2024 Nepal Singh S/o Shri Motilal, R/o Nimod P.S. Maulasar, District Nagaur (At Present Confined In Central Jail, Jaipur) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Petitioner(s) : Mr. Hanuman Singh with Ms. Supriya Rana For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 19/05/2025 1. Instant SOS application is preferred by applicant-accused Nepal Singh in pending appeal filed aggrieved from judgment of conviction and sentence dated 10.01.2024 in Sessions Case No.33/2020 passed by learned Special Judge (POCSO Act Cases) No.1, Jaipur Metro-I, whereby applicant-accused Nepal Singh was convicted under Section 366 IPC and Section 5(G)/6 POCSO Act and further sentenced to undergo rigorous imprisonment of 7 years and 20 years with fine respectively. 2. Learned counsel for applicant while relying upon grounds of appeal submits that applicant is an innocent person and he was falsely implicated by prosecutrix. He further submitted that as per facts narrated in report and also evidence, collected during [2025:RJ-JP:22165] (2 of 6) [SOSA-549/2025] investigation, the prosecutrix was working in a beer bar “Club Hub-40” and no person below the age of 18 can work in beer bar. He also submits that the victim and the prosecution both have fabricated the age record of prosecutrix and on basis of false record about date of birth, the victim has claimed herself as minor. He further submitted that during investigation, victim has claimed her age as 24 years and the Trial Court has committed serious error while considering the victim to be a child under the age of 18 years. He further referred the statement of mother of victim and submitted that only on advice of lawyer, mother of victim has prepared birth certificate, which is a fabricated document and cannot be relied by the prosecution as a document to determine the age of victim. He also referred the cross-examination of Investigating Officer and submitted that even he did not investigated about the age of victim, which clearly reflect that the investigation is not up to the mark and just to complete the formality, the applicant-accused was framed by the police. He further referred the cross-examination of victim and submitted that the Trial Court has ignored the discrepancies in the evidence of PW-1. He further referred the medical evidence and other persons and submitted that the Trial Court has not considered true facts of the case while convicting the applicant-accused. 3. Learned counsel for applicant has further referred the period of custody and submitted that the applicant has already served more than 5 years and 6 months in custody and same is sufficient in the facts of the case, where victim is an adult female. He also referred the order dated 20.02.2025 in SOS application No.2159/2024, wherein a Coordinate Bench has already granted [2025:RJ-JP:22165] (3 of 6) [SOSA-549/2025] SOS to co-accused Amarchand @ Chandu. At last, he submitted that the applicant has a good case to succeed in appeal and disposal of appeal will take its own time. 4. Aforesaid contentions were opposed by learned Pubic Prosecutor and he submitted custody certificate along with intimation slip to complainant. 5. Heard learned counsel for applicant and learned Public Prosecutor. Perused the record. 6. On basis of a report submitted by PW-1 victim FIR No.1434/2019 under Sections 365 and 376(D) IPC was registered at P.S. Jawahar Circle, Jaipur City (East) and after investigation, police has filed a charge-sheet against Nepal Singh, Prakash Sharma and Amarchand @ Chandu under Sections 365 and 376(D) IPC and Section 3/4 of POCSO Act. After framing the charge, the prosecution has examined 31 witnesses and exhibited 58 documents. The accused were examined under Section 313 Cr.P.C. and they have submitted three witnesses DW-1 Sitaram, DW-2 Kanchan and DW-3 Vinod Kumar as defence witnesses and exhibited 20 documents. The Trial Court has convicted and sentenced all three applicants. 7. Admittedly, the victim has mentioned her age as 24 years initially, but during investigation, the police has found that the age of victim is 16 years and 6 months, which prompted the police to add Section 3/4 of POCSO Act and treat victim a child, below 18 years. 8. The facts of the case clearly indicate that out of 3 persons facing trial, only present applicant-accused is known to victim and having a communication with victim. On 28.11.2019, the victim [2025:RJ-JP:22165] (4 of 6) [SOSA-549/2025] accompanied the present applicant on trust and they were joined by Prakash Sharma and later by Amarchand @ Chandu, but when the victim was fed-up of ordeal and exploitation of these accused, she called for police assistance after reaching a petrol pump while accused were committing rape. After registration of case, the statement of victim was recorded under Section 164 Cr.P.C., wherein she also narrated the entire incident. The victim was examined as PW-1 and we have gone through her Examination-in- Chief and detailed cross-examination. 9. The age of victim was determined by Trial Court as between 16 to 18 years, and we have considered the evidence on this issue, particularly evidence of PW-2 mother of victim and PW-3 uncle of victim. The prosecution has examined PW-24 Vikas Soni to prove that the DoB of victim is 18.06.2003 and this witness has tendered Ex.P-33 to P-35. The evidence of PW-24 suggested that victim has admitted in Class IX on 11.04.2017. We have considered detailed cross-examination of PW-24. This matter was investigated by PW-28 Kailash Chand Bohra (Investigating Officer) and his admission indicate that no person below the age of 18 years can work in club. We have considered the cross-examination about the age of victim. There is no other evidence on record, which would suggest that age of victim at the time of admission to Class I, was different than present one. 10. On the contrary, DW-2 Kanchan was examined as wife of accused Nepal Singh and she exhibited certain RTI documents to show that victim has studied in Navodya Vidyapeeth Higher School (Sawaimadhopur) from Class I to Class V, wherein she admitted in [2025:RJ-JP:22165] (5 of 6) [SOSA-549/2025] Class II, but no concrete document was produced to show age other than suggested by PW-24. 11. The age of any person whether victim or a juvenile can be determined under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and we have considered the evidence on record. The grounds raised by learned counsel for applicant can be considered at the time of final adjudication, but the age determination by Trial Court indicate that the victim was between 16 to 18 years. 12. A perusal of entire material particularly evidence of PW-1 clearly suggests that victim has agreed to accompany present applicant-accused as he is known to her, thus there was a trust. A detailed statement of victim clarified the entire incident, wherein she was forced to entertain three persons. The victim was medically examined by PW-4 Dr. Neelam Verma and her cross- examination indicate injuries upon her body and also on genital. The victim has alleged bite by present applicant and same was affirmed by PW-4 Dr. Neelam Verma. Further, there were injuries to suggest forceful intercourse on multiple times. The report Ex.P- 56 suggests that a mixed DNA profile was obtained from stains detected on underwear of victim and DNA profile of accused Nepal Singh is matching with mixed DNA profile obtained from stains detected on underwear of victim. 13. Co-accused Amarchand @ Chandu was granted bail (SOS) by a Co-ordinate Bench of this Court while considering judgment of Hon’ble Supreme Court in case of Robin Meena Vs. State of Rajasthan arising out of SLP (Criminal) No.5226/2024 (order dated 10.02.2025) and Rohit Singh Vs. State of U.P. arising out [2025:RJ-JP:22165] (6 of 6) [SOSA-549/2025] of SLP (Criminal) No.2883/2024 (order dated 02.08.2024). This applicant is in custody since his arrest and total period of custody is more than 5 years and 6 months. 14. The behaviour pattern of this accused is also visible from the report of Jailor, Special Central Jail, Shyalavas, Dausa, wherein this applicant-accused Nepal Singh was found guilty for altercation in prison and he was convicted by Jail Authority. The conduct and behaviour of this application is unsatisfactory. This is sufficient to show aggression of this applicant. 15. The matter pertains to gang rape in a moving car, comparable to Nirbhaya incident of December, 2012, which boiled public at large, and the Trial Court on the basis of evidence of prosecution has convicted the applicant-accused, who is main accused, therefore, this is not a fit case to enlarge applicant- accused on bail. 16. List for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J GAURAV /19