State Of Rajasthan, Through Public Prosecutor v. For

: Mr. Ankush Sharma For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 10/07/2025 Order

1. Instant application for suspension of sentence is preferred by appellant-accused aggrieved from judgment of conviction and sentence dated 21.12.2023 in sessions case No. 71/2023 passed by learned Special Judge, POCSO Act Cases No.1, Bundi whereby appellant-accused was convicted and sentenced under Sections 363, 366, 376(3), 376(2)(n) IPC and Section 3/4(2), 5(L)/6 POCSO Act. The maximum sentence awarded to present appellant is 20 years.

2. Learned counsel for appellant submitted that appellant is in custody since his arrest and total period of custody is more than 2 years and 5 months. He further referred a report registered by PW-1 (father of victim) and submitted that victim has voluntarily [2025:RJ-JP:25971] (2 of 4) [SOSA-91/2024] left her home and police registered a case under section 363 IPC. He further submitted that neither in report nor in initial statement, any allegation of kidnapping or rape was made against present applicant. He further submitted that the father of victim has admitted his marriage in 1998 and after 4 years the victim was born and similar evidence was also given by mother of victim examined as PW-2, which suggests that victim was born in year 2002 and she is nearly 20 years old on date of incident. He further submitted that the victim was born in hospital but no birth certificate from hospital is placed on record rather on basis of Janam Patri, which is a non-authentic document the date of birth was recorded at school and trial court has relied upon said date of birth, which is contrary to admissions of parents on record. He further submitted that unless age of victim is proved beyond reasonable doubt, victim cannot be considered as minor on date of incident. He also submitted that the evidence clearly suggest that victim went voluntarily to Gujarat and she solemnized marriage on

23.06.2023.

3. Learned counsel for appellant has further referred cross- examination of PW-12 and submitted that the age of victim is not proved and victim is required to be considered as an adult. He further referred cross-examination of PW-3 victim and submitted that her statement is sufficient to show that she has pressurized present applicant to accompany her and she voluntarily entered into physical relation with present applicant. He also submitted that this is a case of consent and in cases like present one, both victim and appellant have lived for more than one and a half month at one place and victim has not raised any alarm, which [2025:RJ-JP:25971] (3 of 4) [SOSA-91/2024] clearly indicate that victim is having a consensual affair and she was a consenting party to the entire incident. At last, he submitted that appellant is a young boy and disposal of appeal will take time.

4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted that complainant is intimated.

5. Heard learned counsel for appellant and learned Public Prosecutor.

6. On basis of report exhibit P.1 lodged by PW-1 father of victim about elopement of his daughter on 28.03.2023 FIR No. 62/2023 was registered at P.S. Lakheri, District Bundi and after recovery of victim her statement under 164 Cr.P.C was recorded and, a charge-sheet has been filed against appellant-accused. After framing the charge, the prosecution has examined 12 witnesses and exhibited 20 documents and the Court has exhibited one document. Accused was examined section 313 Cr.P.C. but he has not submitted any defence evidence. The accused was convicted and sentenced on the basis of evidence available on record and considering the defence evidence, the trial court has determined the age of victim on basis of exhibit P.17 to Ex. P-19 as 27.06.2007 and victim was 15 years and 9 months old on date of incident, which means victim was below 16 years. The grounds raised by learned counsel for the applicant about cross examination of PW-1 and PW-2 (parents of victim) can be considered at the time of final adjudication, but same is not sufficient to presume that victim is an adult girl.

7. In report, Ex. P.1 present applicant was neither named nor any allegation is made against him, but after recoveryin statement [2025:RJ-JP:25971] (4 of 4) [SOSA-91/2024] under Section 164 Cr.P.C. victim has mentioned that on earlier occasion, she went to Chittorgarh with Dinesh for three days, but with permission of parents but later she left alone and Dinesh met her at railway station. The evidence suggest that, she stayed with Dinesh for one and half months and they had physical relation. This victim was medically, examined and report exhibit P.3 was prepared. There was no marks of violence or injury and hymen was old torned and healed. The FSL report Exhibit C.1 suggest that allies of male DNA profile obtained from blood sample of accused are matching with DNA profile obtained from underwear of victim, which means that human semen was detected on underwear of victim and same belongs to present applicant- accused. The victim was examined as PW-3 before the trial court and we have considered her statement particularly cross- examination. The victim wants to marry accused and she voluntarily left her with accused, but the age of victim is less than 16 years and there is no legal material to consider that the age of victim is more than 16 or 18 years, therefore, looking to the age of victim, I am of the considered view that consent is immaterial and the applicant is not entitled to be released on bail.

8. Thus, S.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 91/2024 preferred by appellant-accused Dinesh Kumar S/o Omprakash is hereby dismissed.

9. List this S.B. Criminal Appeal in the month of January, 2026. MONU /07 (ASHOK KUMAR JAIN),J