[2025:RJ-JP:17505] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1215/2023 in S.B. Criminal Appeal No. 2251/2023 Banwari Gurjar Son Of Lalaram Gurjar, Aged About 22 Years, Resident Of Kala Bad Ki Phatak Govindpura Sanganer, Police Sta- tion Sanganer Sadar, District Jaipur (Rajasthan) (Accused Appel- lant Is Confine Din Central Jail, Jaipur) ----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Girish Khandelwal For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 24/04/2025 1. Instant application for suspension of sentence is preferred by appellant-accused Banwari Gurjar son of Lalaram Gurjar in pending appeal, filed aggrieved from judgment of conviction and sentence dated 19.04.2023 and 26.04.2023 in sessions case No. 06/2022 whereby the appellant-accused was convicted under Sections 363, 366-A, 376(3) IPC and 3/4 POCSO Act. 2. Learned counsel for petitioner while relying upon grounds of appeal submitted that the appellant is an innocent person and he was falsely implicated by complainant party. He further submitted that as per facts narrated by the prosecution, the girl is not knowing the appellant-accused prior to the incident. He further [2025:RJ-JP:17505] (2 of 5) [SOSA-1215/2023] referred the statement of victim recorded as PW-1 and submitted that in her cross-examination, this fact was admitted by the victim. He also referred the statement of father of victim recorded as PW-4 and submitted that as per cross examination of father two persons were caught and one of them has managed to escape, but other person was handed over to police. He submitted that 4-5 days after the registration of the FIR, the accused was arrested by police. He further submitted that in report exhibit P.2, the appellant-accused was named, though neither the victim nor any family members were known to present applicant. He also submitted that as per story narrated by the prosecution, the victim was taken to hotel and PW-10, Vakil Meena, hotel manager was produced by the prosecution who deposed that a girl other than present victim has stayed with present appellant after taking room in their hotel. He further referred the exhibit P-17 and submitted that I.D. card submitted in support of entry is of another girl and the story of prosecution is falsified from the evidence of prosecution itself. He further submitted that the Investigating Officer has deliberately not collected the CCTV footage. He further referred the cross-examination of PW-3 (Anil Kumar) and PW-12 (Nemi Chand Kharia) and submitted that the shortcomings in investigation is sufficient to cast a doubt on the case of prosecution. He also raised the issue of age and submitted that the age of victim is not established beyond reasonable doubt. He further referred the evidence of PW-7 (Seema) and submitted that no document of date of birth was procured at the time of admission in class-VI by PW-7. He submitted that no admission relating to first school attended by victim was produced by [2025:RJ-JP:17505] (3 of 5) [SOSA-1215/2023] prosecution. He further referred the FSL report and submitted that even from FSL report, nothing was found against the appellant. At last, he submitted that neither there is any medical nor FSL available on record to corroborate the testimony of victim and the contradictions in story of prosecution is sufficient to discard the testimony of victim. 3. Aforesaid contentions were opposed by learned Public Prosecutor and he has submitted custody certificate and same is taken on record. Public prosecutor has also referred the statement of PW-2 to contend that injuries were found on body of victim. 4. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the material available on record. 5. On the basis of report exhibit P.2 filed by PW-4 father of victim FIR No.493/2021 was registered at Police Station, Malpura Gate on 08.11.2021. In the report, the incident of morning of same day was mentioned by complainant. As per report, two persons Banwari Gurjar, Manish Gurjar and motorcycle number were named. During investigation, victim was medically examined on 09.11.2021 by PW-2 Dr Divya Rathore and as per PW-2 Divya Rathore, the hymen was old torned, but there was injury on genital of victim. As per PW-2, there was an abrasion and one mucosal abrasion. As per victim who was examined as PW-1, Banwari Lal has committed rape with her in hotel and she was taken to hotel by two boys and later she was dropped at outside school where her parents were standing outside school. We have gone through the cross examination as referred by learned counsel for appellant. [2025:RJ-JP:17505] (4 of 5) [SOSA-1215/2023] 6. PW-4 is father of victim, and as per him, two boys with her daughter came to school at 4.00 P.M., and after observing their presence, both boys ran away, who were later caught but one managed to escape. We have gone through the cross examination of PW-4 (father of victim). Also gone through the statement of PW-3 Anil Kumar who was posted as Sub-Inspector at P.S. Malpura Gate, Jaipur and his negligence at the time of registration of report is evident from his conduct and deposition. The matter was investigated by PW 12 (Nemi Chand Kharia) and we have gone through the statement of PW-12. We have also gone through the statement of PW-10 (Vakil Meena) and PW-11 (Deepak Meena) relating to Hotel Pink Haveli wherein victim was taken by Banwari Gurjar. PW-7 (Seema) was examined to prove date of birth of victim as 06.07.2007 who exhibit Exs. P-12 to P-15, though victim was admitted in school of PW-7 in class VI and no other evidence about previous school is filed on record. 7. After considering the entire evidence, the prosecution has placed reliance upon oral testimony of victim and further evidence of father of victim and other witnesses like PW-9 and PW-10, but the prosecution has not relied upon FSL report. There is no CCTV footage available on record and for the purpose the evidence of PW-10 and PW-11 is available on record. 8. Having considered the entirety of facts and circumstances of the case, it is also established that appellant-accused is in custody since his arrest and period of custody is more than 3 years 8 months and 30 days but looking to the fact that victim is a school going girl and her age is less than 16 years, therefore, in view of [2025:RJ-JP:17505] (5 of 5) [SOSA-1215/2023] gravity and heinousness of the offence, the appellant-accused is not entitled to be enlarged on bail. 9. Thus, application for suspension of sentence preferred by appellant-accused Banwari Gurjar is hereby dismissed. (ASHOK KUMAR JAIN),J MONU /06