[2025:RJ-JP:25977] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 333/2024 In S.B. Criminal Appeal No. 2057/2023 Vishvendra S/o Jasvir, Aged About 32 Years, R/o Delunda, Police Station Gendoli, District Bundi, Rajasthan, At Present Tenant In House Of Yogendra Sharma, Near Sitaram Sthal, Anta, Police Station Anta, District Baran. (At Present Confined In Central Jail Kota) ----Petitioner Versus State Of Rajasthan, Through The Public Prosecutor ----Respondent For Petitioner(s) : Mr. Amit Jindal For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 03/07/2025 1. The instant application for suspension of sentence is preferred by appellant - Vishvendra S/o Jasvir in pending appeal filed aggrieved from order of conviction and sentence dated 05.07.2023 in Sessions Case No.124/2018 passed by learned Special Judge (POCSO Act Cases) No.2, Baran whereby appellant was convicted for offence under Sections 376(2)(F) of IPC and 5(f)/6 of POCSO Act and sentenced accordingly. 2. Learned counsel for Appellant while relying upon grounds of appeal, has submitted that appellant is an innocent person and he was falsely implicated by complainant. He further referred and [2025:RJ-JP:25977] (2 of 4) [SOSA-333/2024] relied upon statement of victim recorded under sections 161 and 164 CrPC and submitted that victim has changed her version, and improved her previous version while recording before the court as PW3. He also referred paragraph no. 31 of the judgment and submitted that victim has narrated two incidents, firstly of 09.10.2018 and secondly of 26.10.2018 but the prosecution has failed to prove that at which place and on which date the rape was committed with the victim. He also referred the discrepancies in the entire prosecution story and submitted that all material witnesses were left out by the prosecution which include watchman. He further referred the medical evidence and report of PW1 Dr. Usha and submitted that no injuries were found on body of victim and even hymen was found intact which indicate that no rape was committed with victim. He further submitted that one of the important witness is PW4 Narendra who turned hostile and not supported the case of prosecution. He also submitted that the deposition of father of victim PW-2 is not trustworthy rather his evidence is just hearsay and same cannot be relied. He further submitted that PW-3 victim is a tutored witness and she only deposed under the influence of other persons. He further submitted that the prosecution has failed to prove correct age of victim and the trial court has not determined the age of victim in accordance with law. He further submitted that this appellant was on bail during trial and disposal of appeal will take its own time. 3. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. [2025:RJ-JP:25977] (3 of 4) [SOSA-333/2024] 4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. On the basis of report dated 10.11.2016 lodged by PW-2 father of victim about sexual exploitation and assault by appellant, FIR No. 442/2016 at P.S. Anta, Dist. Baran, wsa registered. After investigation, police has filed charge-sheet against appellant. After framing charge, prosecution has examined 16 witnesses and exhibited 25 documents and court has exhibited one document Ex.C1. The accused was examined under Section 313 Cr.P.C. but he has not submitted any defence evidence. Learned trial court has acquitted co-accused Sonu but convicted and sentenced present appellant. 6. The trial court has determined the age of victim on the basis of evidence of PW-6 Kedar Prasad who is Principal of the School, where the appellant is working as Sanskrit Teacher. The trial court has determined the age of victim as around 14 years on the basis of date of birth as 25.06.2002 which means on 09.10.2016, the age of victim is 14-15 years. Thus the victim is less than 16 years on date of incident. The grounds raised by learned counsel for appellant requires consideration and same may be considered at the time of final adjudication. 7. The statement of victim recorded under Sections 161 and 164 Cr.P.C. were considered by this Court. In her statement recorded under Section 164 Cr.P.C. victim has deposed that she likes present appellant who has gifted a mobile phone and Vodafone Sim. Thereafter she indulged in physical relation with appellant voluntarily as she want to marry appellant. The victim has further mentioned in her statement under Section 164 Cr.P.C. [2025:RJ-JP:25977] (4 of 4) [SOSA-333/2024] (Ex.P-6) that Sonu has inserted memory card in her phone and secretly recorded her conversation with appellant and later Sonu blackmailed her. The victim has deposed as PW-3 before the trial court wherein she made allegation against the appellant. We have considered her cross-examination. 8. At this stage, it is not possible for us to express any opinion on merits of the case. The appellant was released on bail in pursuant to order dated 21.02.2017 in bail application No.2442/2017 by a Co-ordinate Bench of this Court. The age of victim is less than 16 years and consent is immaterial in case where the age is less than 18 years. Looking to age of victim, there are no other grounds to release appellant on bail. 9. Accordingly, SOS application preferred by appellant Vishvendra is hereby dismissed. 10. List appeal for hearing in November, 2025. (ASHOK KUMAR JAIN),J PREETI VALECHA /03