[2025:RJ-JP:19209] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 316/2023 In S.B. Criminal Appeal No.277/2023 Hanuman S/o Shyojiram, R/o Badagaon Didayach Police Station Chauth Ka Barvada District Sawai Madhopur (Presently Confined In District Jail Sawai Madhopur) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent Connected With S.B. Criminal Appeal (Sb) No. 1766/2023 Sayar Bairwa Son Of Shri Prabhu Lal, Aged About 46 Years, R/o Didayach Tehsil Choth Mata Barwara, District Sawai Madhopur ----Petitioner Versus 1. State Of Rajasthan, Through P.p 2. Hanuman Son Of Sheojiram, R/o Badagaon Didhayach P.s. Choth Ka Barwara, Dsitrict Sawai Madhopur 3. Praveen @ Forman Son Of Suwalal, R/o Latifganj, Police Station Shop District Tonk ----Respondents For Petitioner(s) : Mr. Rahul Agarwal Mr. Raj Kumar Tongawat For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Ramesh Chand Bairwa HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 06/05/2025 [2025:RJ-JP:19209] (2 of 8) [SOSA-316/2023] 1. The instant application for suspension of sentence is preferred by appellant-Hanuman S/o Shyojiram in pending appeal filed aggrieved from order of conviction and sentence dated 31.01.2023 in Sessions Case No.26/2021 passed by learned Special Judge (POCSO Act Cases), Sawaimadhopur whereby appellant was acquitted for offence under Sections 363, 366 in alternate Section 366A, 342, 376DA and 120B IPC and Section 5(g) read with Section 6 and 16/17 of POCSO Act but convicted for offence under Section 5(l)/6 of POCSO Act sentenced accordingly. 2. Learned counsel for the appellant while relying upon grounds of appeal submitted that appellant is innocent person and he was falsely implicated by complainant party. He further submitted that for incident of 21.10.2020 report was registered on 30.10.2020 and no explanation of delay was offered. He further submitted that there were difference in date of incident and prosecution has failed to explain and prove actual date of incident. He specifically referred the evidence of victim and her parents and submitted that trial court has ignored the material available on record. He further submitted that age of victim was not proved beyond reasonable doubt and no birth certificate was produced in support of admission form. He further submitted that there is cutting in admission form Ex.P-11 and same was not explained by PW-9 Bhanwar Lal Sharma. He further submitted that victim was medically examined and no injuries were found on persona of victim. He further submitted that even FSL report has not supported the case of prosecution even then the trial court has recorded order of conviction against appellant. He also referred [2025:RJ-JP:19209] (3 of 8) [SOSA-316/2023] statement of PW-3 victim and submitted that the contradictions in statement of victim made her unreliable and untrustworthy but the trial court merely on the basis of omnibus allegations has recorded order of conviction. He further submitted that evidence of victim is not sufficient to prove that appellant has committed rape with victim. He further referred statement of PW-6 Mohan and submitted that prosecution witness has not supported the case of victim. He further referred para Nos.72, 74 and 76 of judgment and submitted that the conclusion drawn by trial court is contrary to evidence available on record. He further referred site plan and submitted that even the place of incident was not proved from the material available on record. He referred the evidence of PW-7 who is landlord and submitted that Hanuman is not known to him whereas PW-8 is a hearsay evidence and both of them have not supported the case of prosecution. He further submitted that victim has not provided correct details of incident and appellant Is in custody for last more than 4 years 9 months. He further referred the judgment in case of NCB Vs. Lakhwinder Singh 2025 INSC 190 and submitted that the period of custody is more than 4years 9 months and appeal is not likely to be heard in near future, so he be released on bail. 3. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. He submitted custody certificate and same is taken on record. Learned counsel for complainant submitted that PW-3 victim has supported the case of prosecution and age of victim is less than 14 years on date of incident. [2025:RJ-JP:19209] (4 of 8) [SOSA-316/2023] 4. Heard learned counsel for parties and learned Public Prosecutor. Perused the record. 5. On the basis of report Ex.P-1 submitted by mother of victim PW-1 about elopement of her minor daughter on enticement and kidnapping by Hanuman and others, FIR No.417/2020 was registered at P.S. Gangapur City, Sawaimadhopur on 30.10.2020. During investigation, victim was medically examined on 30.10.2020 and her statement under Section 164 Cr.P.C. was recorded on 03.11.2020. After investigation, police has filed charge-sheet against appellant Hanuman and Praveen. The trial court has framed charges under Sections 363, 366 alterantively 366A, 342 IPC and 376DA IPC and 5(g) read with Section 6 and 16/17 of POCSO Act and 5(l)/6 of POCSO Act against Hanuman, and under Sections 363, 366 alternatively 366A 342, 376DA IPC and 5(g)/6 POCSO Act and 16/17 of POCSO Act and 120B IPC against Praveen. The prosecution has examined 28 witnesses and exhibited 41 documents. The accused were examined under Section 313 Cr.P.C. and in defence accused Hanuman examined himself as DW-1 and exhibited 4 documents. The trial court has acquitted accused Praveen from all charges but convicted Hanuman under Section 5(l) rws 6 of POCSO Act. The maximum sentence awarded to appellant is 20 years. 6. The trial court after considering the evidence on record has drawn conclusion that date of birth of victim is 15.02.2007 and as per PW_9 the victim was admitted to UKG Class in school. The trial court has also considered cuttings in admission form Ex.P-11 but the cutting related to date of admission and not about date of birth. The trial court has discarded the objection of defence. On [2025:RJ-JP:19209] (5 of 8) [SOSA-316/2023] the basis of evidence on record, the trial court has determined the age of victim as 13 years 8 months 6 days on date of incident. The age of victim was less than 14 years. Any objection about the age or process of determination can only be considered at the time of final adjudication. 7. The report was registered on 30.10.2020 and as per report victim was enticed or kidnapped on 21.10.2020 and when report was registered the victim has returned home. The medical examination of victim was conducted by PW-24 Dr. Manju Meena and report Ex.P-6 was prepared. It indicated that the hymen was old healed torn and there was no injury on genital of victim. The FSL report exhibited as Ex.C-1 indicated that no semen was detected either on Salwar/underwear of victim or on vulvo vaginal smear/swab of victim. The medical or FSL is not supportive of prosecution. 8. The statement of victim was recorded under Section 164 Cr.P.C. and same was exhibited as Ex.P9 wherein the victim has deposed having acquaintance with Hanuman and maintaining communication on mobile with him. As per victim, appellant visited her home and on two occasions, he committed rape with her. Thereafter when victim has shifted to Gangapur city then appellant has called her. Thereafter victim accompanied appellant and he committed rape with her. The trial court has framed charged for incident of 21.10.2020. The victim was examined as PW-3 and in her deposition before the trial court, the victim has alleged that prior to October, 2020 appellant has committed rape on two occasions. Thereafter victim went with Hanuman in pickup (vehicle) and she was raped by accused. The victim has further [2025:RJ-JP:19209] (6 of 8) [SOSA-316/2023] stated that site plan Ex.P-7, P8 and P3 were prepared at her instance. We have considered cross-examination. The victim has also admitted that she travelled on 18.10.2020 from Gangapur to Jaipur and admitted that in Ex.D-3. date 21.10.2020 is correct. Herein this case, we have considered statement of PW-7 and PW-8 and other witnesses as referred by learned counsel for appellant. The victim has supported the case of prosecution and she has made it clear that she was raped on three occasions; two prior to October 2020 and one in October, 2020. In defence DW-1 Hanuman himself has examined and according to him there was dispute about payment of money related to fodder purchased by mother of victim. The trial court has considered evidence and did not found trustworthy evidence of DW-1. 9. Having considered the fact that allegation upon appellant about committal of rape with minor victim having age of less than 14 years was found proved by learned trial court and appellant remained in custody throughout the trial, therefore this is not a fit case to enlarge appellant on bail. 10. In case of NCB Vs. Lakhwinder Singh (supra) Hon’ble Supreme Court has considered release of accused when fixed term sentence of 10 years was awarded and appellant has served nearly four and a half years. In the instance case, appellant was found guilty of committal of rape with victim of less than 14 years age and sentence awarded is 20 years. The period of incarceration of present appellant is less than 5 years and looking to facts and circumstances of the case, this is not a fit case wherein we may consider release of appellant on the basis of period of incarceration. [2025:RJ-JP:19209] (7 of 8) [SOSA-316/2023] 11. In view of discussion made hereinabove, no case is made out for grant of SOS to appellant and SOS application is hereby dismissed. Misc. Application stands disposed of. 12. List appeal for hearing in November, 2025. S.B. Criminal Appeal No.1766/2023: 1. Instant appeal is preferred by appellant complainant aggrieved from order of acquittal of accused Hanuman and Praveen from charge under Sections 363, 366 alternatively 366A, 342, 376DA, 120B IPC and 5(g)/6 and 16/17 of POCSO Act. 2. We have considered the submissions of learned counsel for complainant appellant, learned Public Prosecutor and learned counsel for Hanuman. 3. As discussed hereinabove, while considering SOS application of Hanuman, it is apparent on record that age of victim on date of incident is 13 years 8 months 6 days and she was below 14 years of age but deposition of victim as PW-3 clearly indicated that she has named only appellant for committing rape with her. The deposition clearly indicated that prior to October, 2020 the victim was raped on two occasions by appellant and in October, 2020 she was raped once again by appellant. At the time of registration of FIR, victim was in custody of her parents and prior to registration of FIR, victim accompanied by appellant and after committing rape, he left her. 4. The trial court after considering the evidence on record has found that evidence is sufficient to convict Hanuman under Section 5(l)/6 of POCSO Act but it is not sufficient to convict Hanuman under other charges. The evidence against Praveen is not sufficient to convict for any of the charge. [2025:RJ-JP:19209] (8 of 8) [SOSA-316/2023] 5. After considering the evidence both oral and documentary, a conclusion has been drawn by trial court , and I am of considered view that the trial court has not committed any error, therefore instant appeal preferred by appellant complainant sans merit and same is liable to be dismissed. 6. In view of aforesaid, S.B. Criminal Appeal No.1766/2023 is hereby dismissed. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J PREETI VALECHA /01-02