State Of Rajasthan, Through P.p v. For

: Mr. Yogesh Singhal For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/04/2025 Order

1. Instant application for suspension of sentence is preferred by appellant-accused Bheem Singh S/o Chetan in pending appeal filed aggrieved from judgment of conviction and sentence dated

23.01.2023 in sessions case No. 37/2021 passed by learned Special Judge, POCSO Act Cases, No.2, Bharatpur whereby appellant-accused was convicted under Sections 376 IPC and Section 3/4(2) POCSO Act.

2. Learned counsel for applicant while relying upon grounds of appeal submitted that appellant is an innocent person and he was falsely implicated by complainant party. He further referred report Ex.P-1 and submitted that the report is registered after a delay and a person Mohan Shyam was named as witness in FIR, but [2025:RJ-JP:18701] (2 of 5) [SOSA-325/2023] Mohan Shyam was not examined by prosecution to enhance the credibility of victim. He further submitted that after incident, the clothes of victim were washed but even if same were handed over to police for sending them to FSL and procured against appellant- accused. He further submitted that there is a material discrepancy in the statement of victim recorded under Section 161 and 164 Cr.P.C. and inconsistencies were not explained by prosecution. He further submitted that the victim has alleged that she was raped in open field and in such a situation, the victim may sustain some injuries, but no injuries were found on body of victim. He also submitted that as per medical, the hymen of victim was found intact and there were no sign of rape. He further referred the injury report and submitted that duration of injury is 2-3 days, which were prior to the incident. He further referred the site plan, Exhibit P-2 and submitted that the surface was rough and victim has not sustained any injuries when she resisted attempt of rape and it indicate that story narrated by victim is false and concocted. He further referred the age of victim and submitted that the process of determination of age followed by the Trial Court is not in accordance with law. He referred the evidence of PW-3 and submitted that victim is third daughter of PW-3 and submitted that victim is not less than 19 years. He also referred the statement of PW-9 (Shanker Lal) and submitted that victim has directly admitted to Class-II and not in class-I, but no explanation was offered about direct admission to Class-II. He also submitted that aforesaid indicate that no evidence about birth certificate of victim was led by any of the prosecution witness. He further submitted that victim was medically examined by PW-15 and [2025:RJ-JP:18701] (3 of 5) [SOSA-325/2023] there is delay in deposit of some samples to FSL and such a delay would adversely impact the authenticity of the report. He further submitted that admittedly, the underwear and other clothes were washed by victim, leaving no stains over them, and detection of human semen on such washed clothes creates a doubt on the process of FSL. Learned counsel for appellant has specifically referred the cross-examination of PW-1 and recovery of underwear Ex. P-3, and submitted that evidence of prosecution does not inspire confidence. He referred the evidence of PW-14 (IO) and submitted that his admission made it clear that corroboratory evidence was not found during investigation. At last, he referred the animosity between the parties and submitted that appellant-accused is a young man who is in custody for last approximate 4 years, and he is entitled to be released on bail on ground of period of custody as the hearing 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. He placed reliance upon reply filed by State.

4. Heard learned counsel for appellant-accused and learned Public Prosecutor. Perused the record.

5. On the basis of report Ex. P-5 submitted by uncle of victim FIR No. 257/2021 was registered on 01.05.2021 under Sections 376 IPC and ¾ POCSO Act for the incident of 30.04.2021. During investigation, police has prepared site plan Ex. P-2. The victim was examined by PW-15 and a report Ex. P-6 was prepared. The statement of victim under Section 164 Cr.P.C. was recorded. After investigation, a charge-sheet has been filed against the appellant- [2025:RJ-JP:18701] (4 of 5) [SOSA-325/2023] accused. After framing the charge, the prosecution has examined 15 witnesses and exhibited 17 documents. Accused was examined under Section 313 Cr.P.C. and he opted not to submit any defence evidence but he exhibited 5 documents in defence.

6. Herein, the incident is of night of 30.04.2021 and report was registered on very next day i.e. 01.05.2021 and delay is not too much. Herein, this case after the report victim was examined under Section 164 Cr.P.C. wherein she has corroborated the version of FIR. Even before the Court she remained firm and corroborated the statement as recorded by her during investigation to police. The discrepancies as pointed out by learned counsel can only be considered at the time of final adjudication but not at this stage. Herein we have to look the grounds and broad probabilities in referred contradictions. The victim was medically examined by PW-15 and according to her there was no injuries on the body of victim and the hymen was intact.

7. When we peruse report Ex. P-6 then nowhere it was mentioned that hymen was intact and it indicate that admission in cross by PW-15 is contrary to report dated 02.05.2021. Otherwise, also this ground can be considered only at the time of final adjudication.

8. Learned counsel for appellant has seriously doubted on the age of victim as prosecution has claimed age of victim as 15 years. We have considered the cross-examination of PW-3 (mother of victim) about an estimation of age. PW-9 in his deposition has stated date of birth of victim as 03.09.2006 and there is no record prior to admission in Class-II. PW-9 is a [2025:RJ-JP:18701] (5 of 5) [SOSA-325/2023] Government Teacher and produced record is relating to Government school, therefore, at this stage we cannot doubt the record maintained by a Government school. The age of victim on date of incident between 14 to 16 years which means victim was less than 16 years on date of incident.

9. We have considered the cross-examination of PW-1 particularly taking bath and also washing clothes and further recovery and seizure of washed clothes and delay in depositing the sample but still there is positive evidence of victim. The FSL report indicate that human semen was detected on underwear of victim and also on internal vaginal swab of victim. The report indicate that DNA profile of accused is matching with DNA profile found on underwear of victim and external/internal vaginal swab of victim.

10. Having considered the fact that age of victim is less than 16 years and appellant-accused remained in custody throughout the trial and the period of custody is more than 3 years 10 months and 6 days but still it is a case of committing rape with a victim, who is less than 16 years of age on the date of incident, therefore, it is not a fit case to enlarge appellant-accused on bail.

11. Thus, application for suspension of sentence preferred by appellant-accused Bheem Singh S/o Chetan is hereby dismissed.

12. List Criminal Appeal in the month of November, 2025. MONU /102-S (ASHOK KUMAR JAIN),J