State Of Rajasthan, Through P.p v. For

: Mr. M.S. Saharan For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Dinesh Kumar Sharma HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 22/05/2025

1. The instant application for suspension of sentence is preferred by appellant-Sunil Kumar S/o Hansraj in pending appeal filed aggrieved from order of conviction and sentence dated

31.05.2023 in Sessions Case No.90/2020 passed by learned Special Judge (POCSO Act Cases) No.1, Alwar whereby appellant was convicted for offence under Sections 363, 366, 376(2)(n), 376(3) IPC and Section 5(l)/6 of POCSO Act sentenced accordingly.

2. Learned counsel for the appellant while relying upon grounds of appeal submitted that appellant is an innocent person and he was falsely implicated by complainant. He also submitted that complainant PW-2 has filed a report Ex.P7 on 30.06.2020 for [2025:RJ-JP:22063] (2 of 5) [SOSA-1124/2023] elopement of his 14 years old daughter from night of 29.06.2020 and on the basis of this, a report was lodged. He further submitted that appellant was neither named nor a suspicion was raised. He also submitted that victim has never met the appellant prior to leaving her home on 29.06.2020. He also submitted that after report, victim was recovered on 02.07.2020 from P.S. Ghumadwali, Dist. Ganganagar and her statement under Section 161 was recorded, wherein she has not made any allegations against appellant. He further submitted that 9 days after the recovery, statement of victim was recorded on 08.07.2020 wherein she stated that she has left her home on her own and no one has committed rape with her. He also submitted that victim was medically examined on 03.07.2020 and report Ex.P-4 indicated that no injuries either on body or genital were found. He referred the statement of victim recorded as PW-1 before the trial court and submitted that she has made improvement in her statement and for the first time she disclosed about rape by appellant. He further submitted that the evidence of PW-1 clearly suggest that on social media app, victim came to know about the appellant and on this app, both of them have developed friendship and due to this friendship, victim has left for Bikaner and then they went to Suratgarh. He also submitted that as per victim, both have married and cohabited. He further submitted that the evidence on record clearly suggest that victim was a consenting party wherein she deliberately concealed not only about her age but also about the real incident. He also submitted that the victim has taken U-turn from her previous statement under pressure of father and family. He also referred the age of victim and submitted [2025:RJ-JP:22063] (3 of 5) [SOSA-1124/2023] that father of victim PW-2 has admitted that one year after marriage, victim was born to him, which means she is near 18 years of age. He also submitted that PW-6 Pooran Chand was examined by prosecution to establish that the date of birth of victim is 30.07.2006 but no document was submitted by him in support of admission form Ex.P-9. He further referred statement of PW-11 and submitted that no injuries were found on genital of victim. At last, he referred the cross-examination of PW-13 Hari Singh (IO) and submitted that no evidence were found to show use of force by appellant, against victim. He also submitted that appellant was on bail during trial and disposal of appeal will take its own time.

3. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. He submitted custody certificate and same is taken on record. Learned counsel for complainant has submitted that age of victim is 13-14 years and her medical/FSL report clearly indicated that she was subjected to rape. He also relied upon legal position and submitted that marriage with 13-14 years old girl is invalid and no marriage certificate is submitted on record.

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

5. On the basis of report Ex.P-7 lodged by PW-2 father of victim about elopement of his 14 years daughter in the night of

29.06.2020, FIR No.312/2020 under Section 363 IPC was registered at P.S. Rajgarh, Dist. Alwar. During investigation, victim was recovered from P.S. Ghumadwali, Dist. Ganganagar. After recovery, statements of victim under Sections 161 and 164 Cr.P.C., [2025:RJ-JP:22063] (4 of 5) [SOSA-1124/2023] were recorded. The medical of victim was conducted and after investigation, police has filed a charge-sheet against the appellant. The prosecution has examined 18 witnesses and exhibited 31 documents. The accused was examined under Section 313 Cr.P.C. and exhibited one document. The trial court has convicted appellant under Sections 363, 366, 376(2)(n), 376(3) IPC and Section 5(l)/6 of POCSO Act and maximum sentence awarded to appellant is 20 years.

6. In report Ex.P-7 the appellant was neither named nor included as suspect. The victim was recovered on 02.07.2020 and her statement under Section 161 Cr.P.C. was recorded on

03.07.2020 which indicated that victim has voluntarily left her home and then to Sadarshahar and then to Bikaner, where she met appellant. Later they went to Suratgarh, where solemnized marriage with appellant and later she went to house of appellant where victim was allegedly raped on two occasions. This victim was examined as PW-1 before the trial court and she has narrated whole incident and alleged that appellant has committed rape with her. 7. We have considered cross-examination of victim wherein she admitted that instant case is registered on advice of her father. The father of victim was examined as PW2 and mother of victim as PW-3. We have considered the statement of these witnesses. Herein this case, the age of victim was determined on basis of evidence of PW-6Pooran Chand who exhibited Ex.P-9 to Ex.P-11 and submitted that the date of birth of victim was

30.07.2006. We have considered cross-examination of PW-2 and PW-3, which indicated that their marriage was solemnized in January, 2005 and in 2006 victim was born. The trial court has [2025:RJ-JP:22063] (5 of 5) [SOSA-1124/2023] determined age of victim and as per this date of birth, and the age of victim was found to be was less than 14 years.

8. Initially the victim has denied rape in her statement under Section 164 Cr.P.C. but later in her statement she made allegation of rape. No injuries were found on body of victim but FSL report Ex.P-18 and Ex.P-19 suggest that DNA profile of appellant is matching with semen detected on underwear of victim.

9. The appellant was on bail during trial in pursuant to order dated 27.01.2021 in bail application No.15754/2020 passed by a Co-ordinate Bench of this Court.

10. Herein this case, age of victim is less than 14 years and appellant has served more than 2 years 10 months and 4 days in custody but looking to age of victim and allegation of rape as made by her, this is not a fit case to enlarge appellant on bail.

11. Accordingly, SOS application of Sunil Kumar is hereby dismissed.

12. Misc. application stands disposed of.

13. List for hearing in November, 2025. PREETI VALECHA /04 (ASHOK KUMAR JAIN),J