[2026:RJ-JP:31170] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc. 2nd Suspension Of Sentence Application (Appeal) No. 318/2026 CNR: RJHC020137652026 | URN: SOSA / 649U / 2026 Ramprasad S/o Shri Ramkhiladi, R/o Khonchpuri, Police Station Mahwa, District Dausa (Raj.) (At Present The Accused Appellant Is Confined In District Jail, Dausa) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Petitioner(s) : Mr. Manish Gupta For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Ved Prakash Saini HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 07/08/2026 1. This second application for suspension of sentence is preferred by the appellant-applicant accused Ramprasad S/o Shri Ramkhiladi in pending appeal aggrieved from order of conviction and sentence dated 24.08.2022 in Sessions Case No.6/2020 passed by learned Special Judge, POCSO Act Cases, Dausa whereby the appellant accused was convicted for offence under Sections 366A, 376DA of IPC and Section 5/6 of POCSO Act. The maximum sentence awarded to the appellant accused is 20 years. 2. Learned counsel for the appellant while relying upon grounds of appeal submitted that without observing principle of law learned trial court has arrived at a conclusion of conviction. He further [2026:RJ-JP:31170] (2 of 7) [SOSA-318/2026] submitted that learned trial court has overlooked material contradictions and discrepancies, which goes to root of the matter. He further submitted that the entire case of prosecution rests on testimony of interested witness and no independent witness was examined to corroborate the story of prosecution. 3. Learned counsel for petitioner submitted that first SOS application of present petitioner was dismissed on 21.5.2025 and since then the petitioner-accused is in custody. Learned counsel submitted that the period of custody is approximately six years. He further submitted that petitioner is entitled for grant of SOS only on the ground of period of custody as the appeal of present petitioner has not been taken up for hearing. He also submitted that co-accused Naresh and Pintu were granted bail by a co- ordinate Bench, which allowed SOS applications on 18.02.2025. He further submitted that present petitioner is also charged for same offense and petitioner is entitled for bail on ground of parity. 4. Learned counsel further submitted that the victim was examined by PW-9 Dr. Manisha who prepared medical report Ex. P-3 which clearly indicated that the hymen of victim was intact. He further submitted that there is no injury on genitalia of victim, which means there is no penetrative assault upon victim. He also submitted that the similar allegations were made against the two other co-accused who were granted SOS. He also submitted that only on the ground of FSL report, present petitioner was convicted by the trial court. He also referred the statement of victim and submitted that she is not trustworthy and her evidence cannot be treated to be sterling worth. At last, he submitted that the [2026:RJ-JP:31170] (3 of 7) [SOSA-318/2026] petitioner was on bail during trial and he has not misused any liberty granted to him. 5. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant has submitted that the statement under Section 161 and 164 CrPC, the victim has named present petitioner for committing rape with her. He also submitted that the evidence of victim is sufficient to show that present petitioner has committed rape with her. 6. Heard learned counsel for parties and learned Public Prosecutor. Perused the record. 7. First SOS application of present petitioner was dismissed by this Court on 21.5.2025 and we have observed as under: 6 On basis of report Ex.P-1 lodged on 12.10.2019 by PW-1 victim about incident of 10.10.2019, FIR No.576/2019 under Section 376 D of IPC and Section 3/4 of POCSO Act was registered at PS Mahwa District Dausa on 12.10.2019. During investigation, the statement of victim were recorded under Sections 161 and 161 CrPC and was medically examined by PW-9. All three accused were arrested and afterwards a charge-sheet has been filed against them. After framing the charge, the prosecution has examined 24 witnesses and exhibited 37 documents. The accused were examined under Section 313 CrPC and they have submitted one DW-1 Bablu Ram in defence evidence and exhibited three documents. The present appellant accused Ram Prasad and Naresh were convicted under Section 366A, 376D IPC and Section 5/6 of POCSO Act whereas Pintu under Section 376B IPC and Section 5/6 of POCSO Act. 7. A Co-ordinate Bench of this Court has allowed suspension of sentence application of Naresh and Pintu on 18.02.2025. This appellant accused was on bail during trial in pursuant to order dated 20.10.2020 in bail application No.11307/2020 passed by a Co- ordinate Bench of this Court. Presently, this [2026:RJ-JP:31170] (4 of 7) [SOSA-318/2026] appellant accused has served more than 4 years 4 months and 19 days against awarded sentence of 20 years. 8. A perusal of report Ex.P-1 filed by PW-1 indicate that this report was registered after a delay of two days and in this report 3 persons were named but allegation of rape was made against Ram Prasad. The victim was examined under Section 164 CrPC and in Ex.P-6 recorded on 14.10.2019, victim has stated that she was sexually assaulted by Naresh and Pintu, who allegedly committed fingering but she stated that Ram Prasad has committed penetrative sexual assault with her and thereafter Ram Prasad has dropped her. This victim was medically examined by PW-9 Dr. Manisha Meena and prepared a report Ex. P-3. The report and evidence of PW-9 indicate that hymen was intact but before her examination, the victim has already taken bath. The examination indicate that there was no internal injury on genitalia and her hymen was intact though a redness was present. 9. The rape is defined as a sexual assault which involves sexual intercourse or other form of penetration without a person’s consent. An examination of the hymen is not an accurate or a reliable test of a previous sexual assault. Most of the experts advise to avoid to describe the terms such as “intact hymen or torn hymen”. The findings are not based on international standards of examination of rape, therefore, as a Judge we cannot accept the theory of test of virginity. The contention of learned counsel about evidence of PW-9 and report Ex. P-3 cannot be accepted as same does not confirms to international standards. 10. Here in this case, a redness was present and same is sufficient to show some kind of sexual assault was committed with victim. An act of rape cannot be judged on basis of further corroborative test either by medical expert or any other. 11. The age of victim was determined by the trial Court after considering the evidence available on record and the victim was less than 16 years of age on date of incident. The grounds raised by the learned counsel about the age can be considered at the time of final adjudication and not this stage but looking to the findings of the trial Court we can certainly [2026:RJ-JP:31170] (5 of 7) [SOSA-318/2026] presume that the age of victim was less than 16 years on the date of incident. 12. The victim in her report Ex.P-1 and her statement under Section 164 CrPC and as a witness before the trial Court has named the appellant accused Ram Prasad for committing penetrative sexual assault with her. We have considered her cross-examination, wherein also involvement of present appellant accused is further corroborated by her. Since the age of victim is less than 16 years, therefore, her consent is immaterial. Similarly, if there is any manipulation then the manipulation is again a part of consent and same is again immaterial where the age of victim is less than 16 years. Learned counsel has referred evidence of PW- 10, PW-16, PW-17, PW-19 and DW-1 but helpful only when the age of victim is above 18 years but not in case when age of victim is less than 18 years. Similarly, if victim has bunk the school and she was caught by PW-3 or by her brother PW-2 even then the age of victim is a material fact and the consent for any physical relation depend on age. The circumstances or discrepancies in evidence helps the accused when victim is competent enough to understand the consequence of the act. Herein, law provides that the consent of the victim is immaterial when she is below 18 years and all such defence is not helpful at this stage. The grounds can be considered at the time of final adjudication but not now. 13. Learned counsel has further referred the process of collection of sample and deposition and evaluation and we have considered the judgment in case of Prakash Nishad @ Kewat Zinak Nishad v. The State Of Maharashtra (supra) wherein Hon’ble Supreme Court on basis of merits of the case has discarded the report of FSL/DNA. Here in this case, the victim has supported the case of prosecution and moreover the report Ex.P-37 indicate that semen was detected on salwar of victim whereas Ex.P-36 indicate that the DNA profile detected from salwar of victim is matching with DNA profile of the appellant accused. The grounds raised by learned counsel can be considered at final stage, therefore, the FSL report is not a ground to grant suspension of sentence. The appellant accused is in custody for last more than 4 years 4 months and he was on bail during trial but the petitioner accused was convicted by [2026:RJ-JP:31170] (6 of 7) [SOSA-318/2026] the trial Court and the age of victim is less than 16 years. The present accused is main accused in the case, who committed rape with victim. 14. Very recently in case of Balram Dangi Vs. Veer Singh Dangi and Ors. : Criminal Appeal No.2000/2025 (Order: 16-04- 2025) while considering the judgment in case of Omprakash Sahni vs Jai Shankar Chaudhary And Anr. Etc.: (2023) 6 SCC 123 in light of provision under Section 389 of CrPC, Hon’ble Supreme Court has set aside a suspension of sentence order passed by the High Court as untenable of settled legal position. 15. Having considered the entirety and facts and circumstances of the case, I am of considered view that the case of present appellant accused is on different footing than other co-accused Naresh and Pintu, therefore, the appellant accused is not entitled to get benefit of suspension of sentence order passed in favour of naresh and Pintu. Thus, looking to gravity and heinousness of offence, the instant suspension of sentence application is liable to be dismissed. 8. The arguments on merits as advanced by learned counsel have already been considered by this Court while dismissing SOS application on 21.5.2025. There is no doubt about the fact that PW-9 Manisha Meena who prepared Ex. P/3 report after examination of victim has opined that the hymen of victim was intact, though the redness was present. There was no injury on genital of victim but FSL report Ex. P/36 and P/37 indicate presence of semen on salwar of victim and matching of DNA. The age of victim is less than 16 years as the trial court has determined the age on the basis of material available on record. 9. The maximum sentence awarded to present petitioner is 20 years whereas present petitioner has undergone more than 5 years and 11 months. Two accused were already granted bail but period of custody of petitioner is less than 50% and the age of [2026:RJ-JP:31170] (7 of 7) [SOSA-318/2026] victim is less than 16 years. Therefore, I am not inclined to grant SOS to the petitioner on any of the grounds as referred during course of argument. 10. Hence, this second SOS application is hereby dismissed. 11. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J 26/CHETNA BEHRANI