[2025:RJ-JP:18697] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application No. 226/2023 in S.B. Criminal Appeal No. 2322/2022 Rajkumar S/o Sh. Soji Lal, Aged About 22 Years, Resident Of Village Pandula, Tehsil Nainwa P.s. Nainwa District Bundi At Present Tenant Sh. Gulab Chand Bairwa Ka Makan, Plot No. 14, Goverdhan Nagar, Toll Tax Balaji Clinic Wali Gali Sanganer, Police Station Malpura Gate, Jaipur Rajasthan (At Present In Central Jail Jaipur) ----Petitioner Versus State Of Rajasthan, Through P.p ----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application No. 24/2023 in S.B. Criminal Appeal No. 2321/2022 Ashu Kumar Singhal Son Of Late Shri Ramesh Chand Singhal, Aged About 20 Years, Resident Of Pipalda Police Station Bonli, Tehsil Bonli, District Sawai Madhopur Current Residence As Tenant Of Shri Sonu Sharma Plot No. 34, Near Cement Store House, Krashi Nagar, Sanganer Police Station Malpura Gate Jaipur (Raj) (At Present Confined In Central Jail Jaipur) ----Petitioner Versus State Of Rajasthan, Through P.p ----Respondent For Petitioner(s) : Mr. Atul Kumar Jain Ms. Nazish Rashid For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN [2025:RJ-JP:18697] (2 of 6) [SOSA-226/2023] Order 28/04/2025 1. These two SOS applications were preferred by appellants- Rajkumar and Ashu Kumar Singhal pending appeals, filed aggrieved from judgment of conviction and sentence dated 15.09.2022 in sessions case no. 14/2022 whereby the appellants accused were convicted under Sections 363, 376(D)(B) IPC, Section 3/4(2), 5(G)(M)/06 of POCSO Act. The maximum sentence awarded by each of the appellant is 20 years. 2. Learned counsel while placing reliance upon grounds of appeal submitted that there is and delay of three days in report to police and same has not been explained by the prosecution. He/she further submitted that as per evidence about age, the victim was directly admitted in Class-II and that too without any birth certificate of victim. He/she further submitted that no evidence with regard to admission in Class-I is submitted by the prosecution. Learned counsel further referred the cross- examination of mother and submitted that as per evidence of mother, the age claim of prosecution is contradicted. Learned counsel has further referred the medical evidence of PW-5 Dr. Abha Sethi and submitted that no injuries were found on genital of victim and the report does not corroborated the allegation of rape against the accused. She further referred statement of victim recorded under Section 164 Cr.P.C. and also before the trial court and submitted that the person referred in the statement by victim were not examined by prosecution to show that the testimony of victim is trustworthy. She further referred the discrepancies and material contradictions in the statement of victim and submitted [2025:RJ-JP:18697] (3 of 6) [SOSA-226/2023] that these contradictions were ignored by the trial court as the version of victim on all occasions was different. 3. Learned counsel further submitted that duty lies upon prosecution to explain reasons of contradictions and improvement in the story by victim from FIR to the Court statement. Learned counsel has also referred the statement of victim and submitted that the story narrated by victim is imaginary and not believable. She further referred the DNA report and submitted that no semen was detected from biological sample and the detection is only from external objects and same is not sufficient to implicate the appellants accused. Learned counsel has further referred the statement of investigating officer and submitted that the process of investigation clearly indicate that same was started even prior to registration of FIR. Learned counsel have submitted that the appellant accused has already served substantial part of sentence , therefore, they are entitled to be released only on ground of period of custody undergone by them, as the disposal of appeal will take its own time. Learned counsel has relied upon judgment in case of State of M.P. Vs. Anoop Singh (2015) 7 SCC 773 and order of SOS dated 30.10.2023 in case of Mahaveer Vs. State of Rajasthan & Ors. (SOSA no. 1636/2023). 4. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted custody certificate and same is taken on record. He also placed reliance upon reply filed by State. 5. Heard learned counsel for appellants and learned Public Prosecutor. Perused the record. [2025:RJ-JP:18697] (4 of 6) [SOSA-226/2023] 6. on 18.10.2021, PW-2 mother of victim has filed a report Ex. P/1 in police station Malpura Gate, Jaipur about elopement of her daughter on 16.10.2024 with Raj Kumar and Ashu Singhal who committed rape with her. On the basis of report FIR no. 450/2021 under Sections 363, 376(D)(B) IPC and Section 5/6 of POCSO Act was registered. After investigation a charge-sheet has been filed. After framing of charge 10 witnesses were examined by prosecution and 32 documents were exhibited by prosecution. The accused were examined under Section 313 Cr.P.C. and they have not submitted any defence evidence but exhibited five documents. The trial court has convicted both the accused. 7. After registration of FIR on 18.10.2021 the victim was medically examined on 19.10.2021 and Ex. P/3 was prepared. The statement of victim under Section 164 was recorded on 21.10.2021. The victim was examined before the trial court as PW-1 and we have considered her cross-examination as well. The mother of victim was examined as PW-2 and we have considered her cross-examination. Also compared the statement of PW-1 and PW-2. 8. PW-3 Seema Parashar examined to prove date of birth of victim and on the basis of record she has deposed that date of birth of victim was 01.01.2010 and victim has taken admission in Class-II. We have considered cross-examination of PW-2, mother of victim. After considering the entire case, the trial court has concluded that the age of victim is less than 12 years, as there is no other document except direction admission to Class-II. 9. In statement of before the trial court as PW-1 and also under Section 164 Cr.P.C., victim has named both the accused for [2025:RJ-JP:18697] (5 of 6) [SOSA-226/2023] committing rape with her in the night of 16.10.2024. The medical of victim dated 19.10.2021 was conducted by PW-5 but no injuries were found on genital of victim. The hymen of victim was torn but at this stage same is not sufficient to discard the evidence of victim. 10. Herein this case, though doubts were raised about collection of sample and also on FSL report Ex. P/30 as semen was detected on underwear and Pyjama of victim. The police has recovered Chunni from crime scene and human semen was also found on Chunni. The FSL report also suggests that human semen was detected from vaginal swab and vaginal smear of victim. The recovery of used condom from crime scene also indicate that mixed DNA profile was obtained. The conclusion indicate that DNA profile of appellant accused Raj Kumar is matching with DNA profile obtained from underwear, pyjama of victim and also on chunni recovered from crime scene along with used condom recovered from crime scene. The DNA is also matching with vaginal swab and vaginal smear of victim. The DNA profile of Ashu Singhal is also matching with DNA profile obtained from pyjama of victim and also on chunni recovered from crime scene. 11. It is a case of penetrative sexual assault by two persons with a girl of less than 12 years of age. Thus, it is a case of gang rape. We have considered the judgment in case of State of M.P. Vs. Anoop Singh (supra) for the purpose of determination of age but after new JJ Act, 2015 the determination of age is in accordance with Section 94 of the Act. In the case of Mahaveer (supra), this court has allowed SOS application but the facts are different. As per custody certificate both the accused remained in [2025:RJ-JP:18697] (6 of 6) [SOSA-226/2023] custody since their arrest. The period of custody of Raj Kumar is more than three years 10 months and 22 days whereas of Ashu Singhal is more than 3 years 10 months and 15 days. 12. It is a case of gang rape with 12 year old girl, therefore, looking to heinousness and gravity of matter, the appellants accused are not entitled for grant of suspension of sentence. 13. The suspension of sentence filed by appellants- Rajkumar and Ashu Singhal are hereby dismissed. 14. List appeal for hearing in the month of November, 2025. (ASHOK KUMAR JAIN),J CHETNA BEHRANI/100-101