State Of Rajasthan, Through P.p v. For

: Mr. Rajveer Singh Gurjar For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 23/04/2025 Order

1. The instant application for suspension of sentence is preferred by appellant Sajid Son Of Akthar aggrieved from order of conviction and sentence dated 02.02.2023 in Sessions Case No.11/2021 passed by learned Special Judge (POCSO Act Cases) No.4, Alwar whereby appellant was convicted for offence under Sections 5(l)/6 of POCSO Act, and Section 366-A, 363 IPC and sentenced accordingly.

2. Learned counsel for the appellant while relying upon grounds of appeal submitted that PW-2 father of victim has registered FIR on 01.11.2020 by submitting report Ex.P-6 and this report was registered under Section 363 IPC. He also submitted that no specific allegation was made against the appellant, in the report. [2025:RJ-JP:17301] (2 of 6) [SOSA-404/2023] He further submitted that after recovery of victim, her statement under Section 161 Cr.P.C. was recorded wherein she also denied any rape by present appellant. He further submitted that first time it was in the statement under Section 164 Cr.P.C. victim has made allegation against three persons for committing rape with her. He further submitted that statement under Section 164 Cr.P.C. is an improvement by victim from first version recorded to police. He also referred the statement of victim and submitted that this victim is having physical relationship with Munfaid, who is brother of appellant and as per her, appellant after gifting phone tried to contact her and was communicating with her regularly, committed rape with her. Learned counsel for appellant further submitted that all these statements were made under influence of her family. He further submitted that when victim has travelled from one place to another and one State to another but she has not called for any assistance rather when police recovered her, she was not found in company of appellant. He further submitted that as per victim, she was raped by appellant and Munfaid but police has not charge- sheeted Munfaid and application under Section 319 Cr.P.C. filed by prosecution was dismissed by the trial court. He further submitted that the claim about age of victim is also doubtful. He referred the statement of parents of victim and submitted that as per parents, they married 30-35 years before the incident and only after one year of marriage, victim was born who is eldest daughter in their family. He further submitted that the prosecution has claimed that the age of victim is less than 18 years on date of incident and same is based on date of birth as 12.04.2004. He further submitted that PW-21 was examined by prosecution to [2025:RJ-JP:17301] (3 of 6) [SOSA-404/2023] prove the age but admission indicated that no supportive document is filed with admission form. He submitted that victim was major on date of incident and her evidence is sufficient to draw conclusion that she voluntarily left her home. He further referred the evidence on record and submitted that there is delay in collection of clothes and also delay in depositing sample to FSL, thus the DNA process is thoroughly doubtful. He referred the evidence on record and submitted that when testimony of victim does not inspire confidence and FSL is doubtful then accused cannot be convicted for the offence. At last, he submitted that this is a false and fabricated case framed against the appellant and he is entitled to be released on bail.

3. Learned counsel for appellant has further referred the judgment in case of Govind @ Achal Vijay Vs. State of Rajasthan (arising out of SLP (Crl.) No.15839/2024) and submitted that only on period of incarceration of two and a half years, accused was released on bail. He further referred the judgment in case of Robin Meena Vs. State of Rajasthan (arising out of SLP (Crl.) No.5226/2024) and submitted that accused Robin was released on bail as he has undergone incarceration for a period of 1 years 11 months.

4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. He has also filed reply and complainant has already been informed about filing of application.

5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. Also perused the judgments as referred by learned counsel for appellant. [2025:RJ-JP:17301] (4 of 6) [SOSA-404/2023]

6. On the basis of report Ex.P-6 by complainant about his missing daughter, FIR No.278/2020 was registered at P.S. Chopankl District Alwar on 01.11.2020 under Section 363 IPC. Thereafter, victim was recovered on 03.11.2020. The statement of victim under Section 164 Cr.P.C was recorded on 07.11.2020 and exhibited as Ex.P-2. Victim was medically examined and report Ex.P5 was prepared. After investigation, charge-sheet has been filed against the appellant under Sections 363, 366A, 376 IPC and 5(l)/6 of POCSO Act. The prosecution has examined 25 witnesses and exhibited 31 documents. Two documents were exhibited as court documents. The accused was examined under Section 313 Cr.P.C. In defence, DW-1 Gurmeet Singh was examined by accused.

7. The trial court after considering the available evidence on record particularly of PW-21 Ram Kishor and Ex.P-24 and P-25 drawn a conclusion that date of birth of victim was 12.04.2004, also supported by victim PW-1. We have considered the discrepancies as pointed out by learned counsel for appellant. At this stage, it is not possible for us to express any opinion on merits of the determination of age but we have to consider the process determination of age as provided under Section 94 of JJ Act and further considered by Hon’ble Supreme Court in case of P. Yuvaprakash vs State Rep. By Inspector Of Police 2023 INSC 626. The evidence of parents about their marriage and birth of victim required to be considered only at the time of final adjudication and not at this stage when age has been determined on the basis of evidence on record. [2025:RJ-JP:17301] (5 of 6) [SOSA-404/2023]

8. The appellant was named by victim in her statement under Section 164 Cr.P.C. though in statement under Section 161 Cr.P.C. was exhibited as Ex.D-1, also the appellant was named by victim. We have also considered the statement of victim recorded under Section 164 Cr.P.C. and exhibited as Ex.P-2. Further considered the statement of victim recorded before the trial court as PW-1. We have also considered the collection of sample including cloths of victim and also delay in deposition of samples to FSL. The trial court has relied upon FSL Exhibit C1 and C2 though we cannot express any opinion on merits of the case but having considered that appellant was named by victim for committing rape with her and further victim has corroborated the initial allegations in her deposition before the Court. We have considered FSL report and also the surrounding circumstances as mentioned hereinabove, which are sufficient to disagree with arguments of learned counsel.

9. The appellant remained in custody throughout the period of trial. The total period of custody is 4 years 9 months 20 days. Hon’ble Supreme Court in case of Robin Meena Vs. State of Rajasthan (supra) has granted bail (SOS) on ground that appellant has undergone more than 1 years 11 months as the appeal may not be heard within reasonable time. Similarly in case of Govind @ Achal Vijay Vs. State of Rajasthan (supra) Hon’ble Supreme Court has granted bail (SOS) where period of incarceration is two and a half years and age of accused was nearly 17 years at the relevant time. We have gone through the judgments in both the matters. [2025:RJ-JP:17301] (6 of 6) [SOSA-404/2023]

10. Herein this case, the appellant was not released on bail during trial and he remained in custody. The period of sentence is 20 years and period of incarceration is less than 5 years. It cannot be said that the appeal may not be considered in a reasonable time, therefore the appellant is not entitled to be released on bail.

11. Accordingly, SOS application preferred by appellant Sajid Son Of Akthar is hereby dismissed.

12. Misc. application stands disposed of.

13. List appeal for hearing in October, 2025. PREETI VALECHA /26 (ASHOK KUMAR JAIN),J