State Of Rajasthan, Through Public Prosecutor v. For

Order

1. The instant application for suspension of sentence is preferred by appellant-Bhura @ Saleem S/o Shokat @ Islam aggrieved from order of conviction and sentence dated

11.10.2022 in Sessions Case No.47/2021 passed by learned Special Judge (POCSO Act Cases) No.1, Jaipur Metro-II whereby appellant was convicted for offence under Sections 5(m)/6 of POCSO Act and 376AB IPC and sentenced accordingly.

2. Learned counsel for the appellant while placing reliance upon grounds of appeal submitted that appellant is an innocent person [2025:RJ-JP:17263] (2 of 9) [SOSA-164/2023] and he was falsely implicated by complainant due to animosity. He further referred the evidence on record and submitted that appellant is engaged in selling old cars and father of victim has purchased a car through present appellant but he refused to make payment and on consistent demand, a false case was registered against appellant. He further submitted that as per the FIR version, two victims of same age group were allegedly sexually assaulted by present appellant but except daughter of present appellant, another victim has not corroborated the allegation made by the complainant. He submitted that even other witnesses have not supported allegations against the appellant. He specifically referred statement of PW-7 and Ex.P10 and submitted that the allegation against appellant was contradicted from the statement of another victim. Learned counsel for appellant has referred statement of PW-3 Dr. Jitendra Singh Nirwan and ExP-4 and submitted that there were no fresh injuries rather the injuries were of 10-15 days old whereas the victim was medically examined on 13.05.2021 for the alleged incident of 12.05.2021. He also referred the statement of victim recorded as PW-2 and submitted that the statement itself is an improvement from previous statement and it indicated that this PW-2 is a tutored witness. He also referred statement of PW-7 (another victim) and submitted that she was declared hostile by prosecution. He also referred the statement of PW-6 and submitted that mother of another victim was also declared hostile.

3. Learned counsel for appellant has referred statement of mother of victim recorded as PW-1, victim PW-2 and father of victim as PW-4 and submitted that the discrepancies are sufficient [2025:RJ-JP:17263] (3 of 9) [SOSA-164/2023] to tender the case of prosecution. He further referred the place of incident and submitted that it is improbable that an incident like sexual assault may occur at home in the presence of all persons. He also referred the charge-sheet recommended by police under Section 376/511 IPC and 7/8 of POCSO Act and submitted that instead of this, the trial court has framed charge under Section 5(m)/6 of POCSO Act and alternatively Section 376 IPC. He also submitted that there is nothing on record from any of the evidence to show that appellant has committed any penetrative sexual assault with victim therefore, the conviction of appellant is on the basis of non-application of mind. He also referred the transaction between complainant PW-4 and appellant and submitted that due to animosity and malafide object, the case was framed so that complainant may not be required to pay dues of car purchased by PW-4 from appellant. At last, he submitted that appellant is in custody and he is sole bread-earner of family and entitled to be released on bail.

4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate along with report received from concerned police station and intimation slip to complainant and same are taken on record. Learned Public Prosecutor has filed a reply to the application.

5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.

6. A perusal of record indicated that on the basis of Ex.P-1, report submitted by PW-4 on 12.05.2021, FIR No.144/2021 was registered at P.S. Bhatta Basti, Jaipur City (North) under Section 376/511 IPC and 7/8 of POCSO Act. During investigation, victim [2025:RJ-JP:17263] (4 of 9) [SOSA-164/2023] PW-2 was exmained by PW-3 Dr. Jitendra Singh and report Ex.P-4 was prepared. The statement of victim under Section 164 Cr.P.C. was recorded and exhibited as Ex.P6. The statement of other victim was recorded under Section 164 Cr.P.C. and exhibited as Ex.P10. Both the statements were recorded on 17.05.2021. The police has filed charge-sheet under Section 376/511 IPC and 7/8 of POCSO Act. The trial court has framed charge under Section 5(m)/6 of POCSO Act alternatively Section 376AB of IPC. We have gone through the order dated 17.08.2021 whereby the trial court has framed charge against the appellant. The prosecution has examined 11 witnesses and exhibited 15 documents. The accused was examined under Section 313 Cr.P.C. but despite sufficient time, he failed to produce defence evidence. The trial court has convicted appellant under Section 5(m)/6 of POCSO Act and sentenced him to undergo rigorous imprisonment of 20 years with fine of ₹5,000/-.

7. The investigating officer of the case was not examined by prosecution and for that purpose, one witness CW-1 Mahendra (Constable No.1071 P.S. Bhatta Basti) was examined to prove that IO Rajendra Singh Shekhawat is absconding who is a wanted accused in FIR NO.145/2021 P.S. Bhatta Basti.

8. In Ex.P-1 the allegation of attempt was made. There is no sign of rape in Ex.P-4 as the injuries were 10-15 days old. The victim, 7 years old girl was examined under Section 164 Cr.P.C. on

17.05.2021. As per statement of victim, appellant removed pant and underwear and just touched her at every part of body. She further stated that she was kissed at all places. Another victim, who was 5 years old girl has not corroborated her evidence and [2025:RJ-JP:17263] (5 of 9) [SOSA-164/2023] according to her, nothing happened. Since there is a delay in reporting the matter to the police and police has filed charge- sheet under Section 376/511 IPC and 7/8 of POCSO Act, therefore it is important to consider statement of victim recorded as PW-2 before the trial court. The statement of victim was not supported by another victim, examined as PW-7. Herein, except deposition of victim, neither there is neither any other oral evidence nor any medical or scientific material to support claim of rape. The case rests on the sole testimony of 7 year old victim PW-2.

9. A perusal of statement of PW-2 indicated that victim was with PW-7 in the room of appellant and after removing her underwear, accused has kissed her. Victim PW-2 has further stated that accused has kissed her cheek, chest and private parts.

10. If we read the statement of PW-2 as it is, then nowhere it is mentioned that appellant has penetrated or inserted any object or any of his body part into private part (genital) of victim. The trial court is required to consider that whether evidence is sufficient to constitute ingredients of Section 3 of POCSO Act.

11. Section 3 of POCSO Act is reproduced as under: A person is said to commit "penetrative sexual assault" if - • (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or • (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or • (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or [2025:RJ-JP:17263] (6 of 9) [SOSA-164/2023] • (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

12. On perusal of entire record, it has come to notice that the prosecution has recommended charge-sheet under Section 7/8 of POCSO Act and not under Sections 3 or 5 of POCSO Act but in such circumstances looking to gravity of charge, charge under Section 9(m)/10 of POCSO Act should be framed in addition to charge under Section 376/511 IPC. After framing the charge, victim was examined and an opportunity of cross-examination was afforded. The prosecution has not submitted any medical or FSL report to support the case of victim about penetration or insertion in the genital of victim. The case of prosecution is not under Section 5/6 of POCSO Act.

13. A perusal of evidence particularly of victim, who is 7 years old girl clearly indicated that she has not narrated the words required to show that she was subjected to penetrative sexual assault. Learned trial Judge without ascertaining the evidence and ingredients of offence has acted on mechanical basis. It gives rise to suspicion whether the learned Judge who is dealing the case of POCSO is competent enough to deal matter relating to POCSO Act Cases.

14. A three Judge Bench of Hon’ble Supreme Court in case of Attorney General of India Vs. Satish and Anr. (2022) 5 SCC 545 while setting aside the judgment of a Co-ordinate Bench of Bombay High Court has considered broader definition of sexual assault and emphasized importance of sexual intent in determining whether an act constitutes sexual assault. The POCSO [2025:RJ-JP:17263] (7 of 9) [SOSA-164/2023] Act is aimed to provide broader protection of children from sexual offence.

15. Having considered the entire evidence on record and also the fact that appellant is in custody since his arrest and total period of custody till date is 4 years 4 months and 6 days. He was also not released on bail during trial.

16. Herein this case, the conscious of court is quite shocked from the material on record and I have no option except to consider the SOS application of present appellant on the basis of statement of PW-2 victim and cross-examination of PW-4. The observation made by this Court are purely incidental in nature therefore same may not be considered as observation on merits of the case.

17. The only option before this Court is to request Rajasthan Judicial Academy, established for the purpose of capacity building and training to Judicial Officers, to undertake periodical training programmes for Judges working in POCSO Courts. Also impart training urgently to learned Presiding Officer (Mr. Govind Vallabh Pant) at Judicial Academy, Jodhpur.

18. Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellant can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellant accused-Bhura @ Saleem S/o Shokat @ Islam is suspended till disposal of appeal with the condition that he would execute a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 01.08.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- [2025:RJ-JP:17263] (8 of 9) [SOSA-164/2023]

1. That the appellant accused shall not contact or connect directly or indirectly with victim or any of her family member.

2. After release of appellant on bail, he will not indulge in any criminal activity and if it is found that he is involved in any criminal activity, the order shall be recalled.

3. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

4. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

5. Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court.

19. Misc. Application stands disposed of.

20. A copy of this order be sent to learned trial court through E- mail.

21. It is appropriate to send a copy of this order to Hon’ble Judge, In-charge of Judicial Academy for organizing capacity building and training programmed for POCSO Judges on regular basis. Till the time, atleast the Judge, who passed the impugned order be called for training relating to sessions trial particularly apprehension of evidence. (ASHOK KUMAR JAIN),J [2025:RJ-JP:17263] (9 of 9) [SOSA-164/2023] PREETI VALECHA /25