[2025:RJ-JP:18696] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 1672/2023 in S.B. Criminal Appeal No. 236/2023 Niranjan @ Tota S/o Late Parsadi, R/o Nagli Megha Police Station Udhyog Nagar Alwar Dist. Alwar (Rajasthan) Presently Confined In Central Jail Alwar ----Petitioner Versus 1. State Of Rajasthan, Through Public Prosecutor 2. Xxxx, R/o ----Respondents For Petitioner(s) : Mr. Amitabh Vijaywargia For Respondent(s) : Mr. Vijay Singh Yadav, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 24/04/2025 1. Instant SOS application is preferred by appellant accused Niranjan @ Tota in pending appeal filed aggrieved from judgment of conviction and sentence dated 20.07.2022 in sessions case no. 48/2020 passed by learned Special Judge, POCSO Act cases no.1, Alwar whereby the appellant accused was convicted under Sections 450, 363, 366, 376AB IPC and Section 5M/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:18696] (2 of 5) [SOSA-1672/2023] was falsely implicated due to animosity. He further referred delay in registration of FIR and submitted that the prosecution has failed to explain delay in reporting matter to police. He referred the discrepancies in the statement of victim and her parents and submitted that the trial court has ignored the material contradictions, available on record. He further referred the medical examination of victim and submitted that the victim was examined after three days of incident and same was not explained in satisfactory manner. He further referred the process of collection of sample and raised the issue of delay in deposition of sample for examination. He further referred the FSL report and submitted that without putting a question under Section 313 Cr.P.C. this report was relied by the trial court. He also referred the judgment in case of Ameen Khan Vs. State of Rajasthan (S.B. Criminal Appeal No. 593/2014) and submitted that in the instant case the case property which was recovered during investigation was not produced in the court and accused is entitled for benefit of non-production of case property by the prosecution. He also referred cross-examination of PW-3, father of victim and submitted that the cross-examination clearly indicate that the report Ex. P/1 was drafted by police and same is not a bona fide version of complainant. At last, he submitted that the victim is a tutored witness and her version is not trustworthy, therefore, accused is entitled to be released on bail. 3. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted custody certificate and same is taken on record. Learned Public Prosecutor has also informed that [2025:RJ-JP:18696] (3 of 5) [SOSA-1672/2023] complainant victim was intimated and a reply has been filed to oppose the SOS. 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On the basis of report Ex. P/1 submitted by PW-3 father of victim about penetrative sexual assault by appellant accused FIR no. 176/2020 was registered on 05.06.2020 under Sections 363, 376AB and 5M/6 of POCSO Act. The medical was conducted on 05.06.2020 whereas statement under Section 164 Cr.P.C. was recorded on 06.06.2020. After investigation police has filed a charge-sheet against the appellant. After framing the charge, the prosecution has examined 14 witnesses and exhibited 23 documents. The accused was examined under Section 313 Cr.P.C. and he failed to submit any defence evidence. 6. In report Ex. P/1 the incident of intervening night of 3rd and 4th June, 2020 was mentioned by the complainant PW-3 but he explained that due to social prestige and reputation he has not registered report on time. The victim was medically examined by Dr. Kanchan Batra and she was not examined by prosecution. PW- 8 Dr. Kalpana Mathur who also examined as an expert has opined that there was mucosal abrasion on right labia minor and vulva of victim. There was redness and tenderness and pain on touch. In cross-examination PW-8 has admitted that hymen of victim was intact and mucosal abrasion may be result of itching. PW-7 Dr. P.C. Saini has corroborated the collection of sample and also seizure of clothes of victim and accused. PW-7 has also exhibited FSL DNA report. [2025:RJ-JP:18696] (4 of 5) [SOSA-1672/2023] 7. We have considered the statement of victim recorded under Section 164 Cr.P.C and thereafter as PW-1 before the trial court. The victim has narrated the incident and she has specifically pointed out the fact of fingering committed by the accused. The mother of victim was examined as PW-2 and father of victim as PW-3, though, the report Ex. P/1 was drafted by police but it hardly impact the case of prosecution. 8. The age of victim was further corroborated by PW-5 Ritu Bansal who exhibited school admission record from Ex. P/10 to P/12 and as per her the date of birth is 25.08.2011. Thus, the age of victim is approximately 10 years or less than 12 years. We have considered the process of collection of sample by doctor and handing over to police and further evidence about deposition of sample to FSL. The grounds raised by learned counsel can only be considered at the time of final adjudication and not now. Herein, the counsel further raised an issue that case property was not produced before during trial and he relied upon judgment in case of Ameen Khan (supra). We have considered the judgment of a Co-ordinate Bench of this Court, this ground can be raised at final adjudication. 9. In the instant case besides evidence of victim, the medical evidence also supported injuries on genital of victim and further corroboration in FSL report. The age of victim is less than 12 years and the grounds raised by learned counsel may be considered only at the time of final adjudication and not before, therefore, looking to gravity and heinousness of offence committed with a minor victim, it is not appropriate for us to allow suspension of sentence application of present appellant. [2025:RJ-JP:18696] (5 of 5) [SOSA-1672/2023] 10. Hence, the instant application for suspension of sentence is hereby dismissed. 11. List appeal for hearing in the month of September, 2025. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /7