[2026:RJ-JP:1772] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc 2nd Suspension Of Sentence Application (Appeal) No. 2612/2025 In S.B. Criminal Appeal No. 1312/2024 Ajay Joshi S/o Shri Ramdayal Joshi, Aged About 30 Years, R/o Retwara Chauk, P.s. Kotwali, Jhalawar Present House No. D-131, Indra Colony, Police Station Vigyan Nagar, Kota (Raj.) (At Present Confined In Central Jail Kota (Raj.). ----Applicant-Appellant Versus State Of Rajasthan, Through P.P. ----Respondent For Appellant(s) : Mr. Abhishek Bhardwaj For Respondent(s) : Mr. Onkar Singh Rajpurohit, PP Mr. Naman Yadav for complainant HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 13/01/2026 1. The instant second application for suspension of sentence is preferred in pending appeal which was admitted on 08.07.2024 and aggrieved from order of conviction and sentence dated 07.05.2024 in Sessions Case No. 5/2021 passed by learned Special Judge (POCSO Act cases) No.1, Kota whereby appellant was convicted under Section 376(2)(n) IPC and Section 5(L)/6 POCSO Act and sentenced accordingly. 2. Learned counsel for the appellant while referring judgment in case of Birad Mal Singhvi Vs. Anand Purohit : AIR 1988 SC 1796 and Jabar Singh Vs. Dinesh and Ors. : [2026:RJ-JP:1772] (2 of 5) [SOSA-2612/2025] MANU/SC/0167/2010, submits that at the time of considering first suspension of sentence application, the issues relating to age of victim were overlooked. He referred Section 35 of Indian Evidence Act, 1872 and also Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and submitted that the prosecution was under an obligation to submit evidence of the subscriber of documents, who recorded the entry either in the admission form or in SR Register. He submits that the prosecution has examined PW3 who is not author of any of the documents tendered in evidence. He further submits that even on Ex. P-10, no signature of parents of victim were procured at the time of recording of the date of birth of victim. He further referred evidence of PW-9 mother of victim and submitted that even from her evidence, the date of birth of victim is not proved. He submits that it is duty of the prosecution to prove date of birth of victim in accordance with procedure established by law. He further referred the discrepancies and material contradictions in the prosecution evidence and submitted that even the appellant accused was acquitted from charge under Sections 384, 506 IPC and Section 67B of IT Act. He also submitted that the victim has not supported the case of prosecution in toto, therefore, the conviction recorded by the trial Court requires consideration by this Hon'ble Court. He also submits that the sentence awarded by the trial Court is fixed termed sentence and appellant is entitled for grant of suspension of sentence. 3. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted custody certificate along with report received from Police Station Vigyan Nagar, Kota. [2026:RJ-JP:1772] (3 of 5) [SOSA-2612/2025] 4. Learned Counsel for the complainant has not opposed this suspension of sentence application. 5. Heard learned Counsel for the parties and learned Public Prosecutor. Perused the material placed on record. 6. The first SOS application was considered by this Court on 08.08.2024, and while considering the first SOS application, we have observed as under. “5. On the basis of written report of PW-1 victim, FIR no. 311/2020 was registered on 05.11.2020 at P.S. Vigyan Nagar, District Kota City under Sections 376, 384, 506 IPC and 5/6 of POCSO Act. After investigation, police has filed charge-sheet against the appellant. During trial victim was examined as PW-1 whereas her mother was examined as PW-9. The landlady of accused Ajay Joshi was examined as PW-2. 6. After considering the entire material on record, the trial court has convicted present appellant for offence under Sections 376(2)(N) IPC and 5(L)/6 of POCSO Act. The learned trial court has acquitted present appellant for offence under Section 384, 506 of IPC and 67-B of IT Act. 7. After registration of FIR victim was examined under Section 164 Cr.P.C. and the statement was exhibited as Ex. P/7. The age of victim was 17 years on date of registration of FIR as her date of birth which was found proved from material on record is 14.10.2003. In her statement victim has admitted that accused is good friend and with her consent she and accused both prepared nude videos and she came to Court under pressure from her family. During investigation, police has recovered mobile phone of Apple Company from possession of appellant accused wherein there were some videos relating to victim and accused were found. These obscene pictures and videos were examined by FSL and reports Ex. P/28 and P/29 are available on record. The trial court has acquitted present appellant from charge under Section 67 of IT Act. We have considered cross- examination of PW-1 victim and also considered examination-in-chief of PW-1. A perusal of entire [2026:RJ-JP:1772] (4 of 5) [SOSA-2612/2025] evidence including the admission as referred by learned counsel for appellant reflects that victim was minor and her consent is immaterial. The appellant accused was an adult male and he was using his influence as he was a relative of one Suraj Sharma, a family friend of family of victim.” 7. The material on record clearly indicates that the date of birth of victim was proved as 14.10.2003, and she was less than 18 years of age. The trial Court has determined this issue in favor of the prosecution. If there is any ground to challenge the evidence about determination of age considering the legal position as pointed out by the learned counsel for the appellant, then same can only be considered at the time of final adjudication, but for the purpose of decision of the suspension of sentence, the determination of age by trial Court is sufficient and it indicated that victim was less than 18 years of age on the date of incident. The material on record also indicate that several photos and obscene pictures were recovered and same were examined by FSL, though the present appellant was acquitted from the charge but the material on record as examined by FSL is also placed on record. The consent of victim at this stage is immaterial. 8. The appellant was on bail during trial and after his sentence he has served two years and three months against awarded sentence of twenty years. 9. Considering the gravity of charge and also the metal placed on record, it is not a fit case to enlarge the present appellant on bail. 10. Hence, the second application for suspension of sentence is hereby dismissed. [2026:RJ-JP:1772] (5 of 5) [SOSA-2612/2025] 11. List the criminal appeal for hearing in the month of March, 2026. (ASHOK KUMAR JAIN),J MR/9