State Of Rajasthan, Through P.p Prosecutrix (Xxx), R/o v. Connected

Judgment

2. State Of Rajasthan, Through P.p Prosecutrix (Xxx), R/o Versus Connected With ----Respondents S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 489/2025 In S.B. Criminal Appeal No.590/2025

Deepak Kumar S/o Shri Rajendra, Aged About 24 Years, R/o Antela Bhabru P.s. Shahpura District Jaipur (Raj) (At Present Confined In Central Jail, Jaipur) Versus ----Petitioner State Of Rajasthan, Through The Public Prosecutor ----Respondent For Petitioner(s) : Ms. Anubha Singh Mr. B.M. Gurjar For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Javed Mohd. Khan HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 12/05/2025 Order

1. These applications for suspension of sentence is preferred by appellants-Deepak S/o Shri Girdhari and Deepak Kumar S/o Shri Rajendra in pending appeals filed aggrieved from order of conviction and sentence dated 19.02.2025 in Sessions Case [2025:RJ-JP:20030] (2 of 6) [SOSA-588/2025] No.34/2022 passed by learned Special Judge (POCSO Act Cases), Jaipur Dist. Jaipur whereby appellants were convicted for offence under Sections 363, 366 IPC and 3/18 of POCSO Act alternatively Section 376/511 IPC and sentenced accordingly.

2. Learned counsel for the appellants submitted that appellants are innocent persons and they were falsely implicated at behest of complainant. She further referred the facts of the case and submitted that there are two victims in the instant case and date of birth of one victim ‘M’ examined as PW-1 was claimed as

03.02.2003 whereas date of birth of another victim named as ‘S’ and examined as PW-2 was claimed as 02.08.2004. She further submitted that initially a report was registered under Section 354A IPC and 7/8 of POCSO Act and during investigation the victims have made improvements in their version. After charge-sheet by police, the trial court has added the charge under Sections 376, 511 and 3/18 of POCSO Act against the accused. She further referred the statement of PW-4 Arjun Saini and PW-5 father of victim ‘S’ and submitted that both of them have not supported the case of prosecution. She further referred the statement of PW-10 Suresh Chand and submitted that transfer certificate (TC) was filed to prove date of birth of victim and same is not admissible in the evidence. She further referred the cross-examination of both victims and submitted that the entire story is concocted and planned to frame present appellants. She further referred the cross-examination of IO and submitted that story narrated by victim is not trustworthy and no allegations were proved from the evidence of prosecution. At last, she submitted that both [2025:RJ-JP:20030] (3 of 6) [SOSA-588/2025] appellants were on bail during trial and they have not misused the liberty granted to them.

4. Learned counsel on behalf of one of the accused has supported arguments of learned counsel appearing on behalf of Deepak S/o Shri Girdhari and submitted that cross-examination of victim were not considered by the trial court while drawing conclusion of conviction. He further submitted that evidence on record is not sufficient to draw conclusion that both the appellants were present at the spot they have sexually assaulted the victims.

5. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. He submitted custody certificates along with intimation slip to complainant and same are taken on record. Learned counsel for complainant submitted that victims were minor and they have deposed against accused.

6. Heard learned counsel for parties and learned Public Prosecutor. Perused the record.

7. On the basis of report Ex.P-2 dated 03.05.2020 submitted by PW-5 father of one of the victim and close relative of another victim, FIR No.79/2020 was registered at P.S. Amarsar, Jaipur Rural on 03.05.2020 under Sections 363, 366A IPC and 7/8 of POCSO Act. During investigation, statement of both the victims were recorded under Sections 161 and 164 Cr.P.C. After investigation police has filed charge-sheet against Deepak Kumar ‘S’ under Sections 363, 366A, 354A(1) IPC and 7/8 and 11(2)/12 of POCSO Act and Deepak Kumar ‘M’ under Sections 363, 366, 354A(1) IPC and 7/8 of POCSO Act. [2025:RJ-JP:20030] (4 of 6) [SOSA-588/2025]

8. Learned trial court has framed charged under Sections 363, 366 IPC and 3/18 of POCSO Act alternatively Section 376/511 IPC, against both the accused. The prosecution has examined 11 witnesses and exhibited 22 documents. The accused were examined under Section 313 Cr.P.C. and they had examined three witnesses DW-1 to DW-3 in their defence. The trial court has convicted appellants under Sections 363, 366 IPC and 3/18 of POCSO Act alternatively 376/511 IPC. The maximum sentence awarded to each of the appellant is 10 years.

9. Both the appellants were released on bail in pursuant to order dated 30.05.2020 in bail application No.4828/2020 and 4857/2020 passed by a Co-ordinate Bench of this Court. There is no other criminal antecedents against the appellants.

10. After registration of FIR, statement of victims were recorded under Section 164 Cr.P.C. The police has filed charge-sheet under Section 7/8 and 11/12 of POCSO Act but not under Section 3/18 and 376/511 IPC, but the trial court on the basis of material on record has framed charges against the appellants. PW-4 Arjun Saini turned hostile and not supported the case of prosecution. The complainant, who is father of victim examined, has PW-5 has also turned hostile. The date of birth of victim ‘S’ (PW-2) was claimed as 08.02.2004 and PW-7 Kishan Lal was examined by prosecution. PW-7 has exhibited admission form Ex.P-16 and SR register Ex.P-17 but this date of birth was recorded on the basis of TC (Ex.P-18). The date of birth of victim ‘M’ (PW_1) was proved by PW-10 Suresh Chand and he exhibited certificate Ex.P-20 along with admission form Ex.P-21 and SR Register Ex.P-22 and according to him the date of birth of victim was 03.02.2003. [2025:RJ-JP:20030] (5 of 6) [SOSA-588/2025]

11. The date of birth of victim or juvenile can be determined in accordance with Section 94 of JJ Act, 2015. In case of P. Yuvaprakash vs State Rep. By Inspector Of Police 2023 INSC 626 Hon’ble Supreme Court has considered the order of precedence to be followed by the Court while determining the age of any person. The grounds raised by learned counsel for appellant can be considered at the time of final adjudication but not now. As on today, considering aforesaid the victim PW-1 ‘M’ was between 17-18 years whereas PW-2 ‘S’ was between 15-16 years on date of incident. We have considered the statement of both the victims. PW-1 has not named anyone who rescued her at the time of assault whereas PW-2 has named Arjun and Monu who rescued her. The prosecution has examined Arjun as PW-4 and he has turned hostile and not supported the case of prosecution but Monu was not examined by the prosecution.

12. These two appellants were on bail during trial and disposal of appeal will take its own time. At this stage, it is not possible for us to express any opinion on merits of the case, but having considered the entirety of facts and circumstances of the case, it is a fit case to enlarge appellants on bail.

13. Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellants can be enlarged on bail. The applications under Section 430(1) B.N.S.S. are allowed and sentence of appellants accused-Deepak S/o Shri Girdhari and Deepak Kumar S/o Shri Rajendra is suspended till disposal of appeal with the condition that each of them would executes 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 [2025:RJ-JP:20030] (6 of 6) [SOSA-588/2025] Judge for their appearance in this court on 22.08.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

2. After release on bail, the appellants accused will not contact victim(s) or her family members, directly or indirectly.

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

4. That if the applicant(s) changes the place of residence, they will give in writing their 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.

14. Misc. Application stands disposed of.

15. A copy of this order be sent to learned trial court through E- mail. PREETI VALECHA /25-26 (ASHOK KUMAR JAIN),J