State Of Rajasthan, Through P.p vs Ms. Sudha Gupta

: Mr. Rohan Jain with Ms. Sudha Gupta For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 02/07/2025 Order

1. The instant application for suspension of sentence is preferred by appellant -Deva Saharia @ Shanidev Son of Shri Hari Charan, in pending appeal filed aggrieved from order of conviction and sentence dated 03.08.2023 in Sessions Case No. 10/2022 passed by learned Special Judge, POCSO Act Cases, No.1 Baran, whereby appellant-accused was convicted for offence under Sections 452, 506, 376(2)(n) IPC and Section 5(j)(ii)(L)/6 and sentenced accordingly.

2. Learned counsel for appellant-accused while relying upon grounds of appeal has submitted that appellant is an innocent person and he was falsely implicated by complainant. He further [2025:RJ-JP:24329] (2 of 6) [SOSA-1144/2024] submitted that the victim is an adult female but in order to attract provision of POCSO act, her age documents were fabricated by prosecution and she was shown as minor on date of incident. He further referred cross-examination of victim PW-6, mother of victim PW-2, father of victim PW-3 and brother of victim PW-4 and submitted that the age difference between victim and her elder brother is two years whereas elder brother PW-4 got married at the age of 22 before the incident. He further submitted that victim is second child in the family of PW-2 and PW-3 and by birth record, she has been shown as third child, which is contrary to oral admission made by the family members of victim. He further submitted that father of present petitioner has appeared as DW-1 in defence and he has deposed about correct date of birth of victim which indicate that victim has already attained adulthood on date of incident.

3. He further referred exhibit P-12, 13, 14 and 15 and also compared with exhibit P.11 and submitted that date and year of admission is different, which is sufficient to show fabrication of document. He further referred the statement of PW-7 Ram Sukhi and submitted that she is a contractual worker and not authorized to depose about date of birth. He further referred the statement of PW8 and submitted that on basis of transfer certificate issued by Aanganwadi, victimwas admitted in Class-III. He Further referred the judgment in case of Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796 and submitted that as per Section 35 of Indian Evidence Act, the date of birth has to be proved in the manner as provided under the law, but in the instant case, no such evidence is produced by prosecution. He further referred the [2025:RJ-JP:24329] (3 of 6) [SOSA-1144/2024] cross examination of witnesses and submitted that the victim was adult and she was a consenting party to the incident as she has not raised any objection while residing with appellant-accused. He further submitted that the Trial Court has committed serious error while ignoring the discrepancies and material contradictions at the time of determination of age of victim.

4. Learned counsel for appellant has further referred the police report and submitted that report was registered after a delay of 7- 8 months without assigning any reason of delay. He further submitted that when victim was recovered and delivered a baby, then no FSL was conducted and the trial court has noticed shortcomings in the investigation. He further submitted that neither in medical nor in FSL, the allegation of rape with victim is proved. He further referred the cross-examination of witnesses and also the material on record and submitted that ignoring the contradictions and discrepancies present petitioner accused was convicted by the Trial Court. At last, he submitted that present petitioner accused is in custody for more than 3 years and 8 months and disposal of appeal will take time.

5. Aforesaid contentions were opposed by learned Public Prosecutor. Learned Public Prosecutor has submitted latest custody certificate and placed reliance upon reply filed by State. He also submitted that complainant has been informed.

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

7. On basis of report Ex. P-2 lodged by PW-6victim about rape by appellant-accused 7-8 months before the report FIR No. 18/2022 is registered at P.S. Shahbad, District Baran on [2025:RJ-JP:24329] (4 of 6) [SOSA-1144/2024]

28.01.2022. During investigation, victim was medically examined and it was found that she was actually pregnant of around 30 weeks and 2 days. The statement of victim was recorded under Section 161 and 164 Cr.P.C. This appellant-accused was arrested and since then he is in custody. After investigation, police has filed a charge-sheet against the appellant-accused. After framing the charge, prosecution has examined 16 witnesses and exhibited 25 documents. Accused was examined under Section 313 Cr.P.C. and he has produced DW-1 Hari Chand (father) as defence witness and exhibited three documents. The Trial Court has convicted appellant-accused under Sections 452, 506, 376(2)(n) IPC and Section 5(j)(ii)(L)/6 POCSO Act. The maximum sentence awarded to present appellant is 20 years. The appellant-accused is in custody for more than 3 years, 8 months and 4 days.

8. The material on record including evidence suggests that when the report was registered the victim was pregnant and later she was medically examined but the incident of rape is of 7-8 months old and soon after the incident, the report was not registered. The victim has made an allegation of intimidation upon appellant, which is primary reason of delay. The FSL Report Ex. P- 25 suggest that no semen was found on clothes or biological samples of victim. A very important question raised by learned counsel for appellant is about the age of victim. The victim has claimed her age as 16 years in report and also in her deposition. A secondary school certificate is also placed on record, in support of her claim.

9. Learned counsel for appellant has referred the judgment in case of Birad Mal Singhvi Vs. Anand Purohit (supra) wherein [2025:RJ-JP:24329] (5 of 6) [SOSA-1144/2024] Hon’ble Supreme Court in case related to an election petition has considered Section 35 of Indian Evidence Act about admissibility of document and laid down that an entry relating to date of birth made in school register is relevant and admissible but the parents or near relatives having special knowledge are the best person to depose about the date of birth of a person.

10. The date of birth in present case required to be determined in accordance with Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. Hon’ble Supreme Court in case of P. Yuvaprakash vs State Rep. By Inspector of Police 2023 INSC 626 has also considered the issue of determination of age after taking note of several other judgments. The grounds about determination of age can be considered at the time of final adjudication and at this stage it is not possible for us to express any opinion on the merits regarding determination of age, by the Trial Court.

11. Having considered the fact that the Trial Court after taking note of evidence on record placed reliance upon evidence of PW-7 Ram Sukhi & PW-8 and determined the date of birth of victim as

04.02.2006. I am of the considered view, that at this stage we cannot set aside the findings recorded by the Trial Court. The age of victim found to be less than 16 years on age of incident.

12. There is a delay in reporting the matter to police but the fact clearly indicate that victim was pregnant and she deposed against the appellant-accused, though, the entire case of present appellant-accused is based on determination of age of victim and consent by victim. The grounds raised by learned counsel are not sufficient to grant SoS to appellant-accused, therefore, looking to [2025:RJ-JP:24329] (6 of 6) [SOSA-1144/2024] gravity of charge and also the fact that age of victim is less than 16 years, therefore this is not a fit case to enlarge appellant- accused on bail.

13. Thus, S.B. Criminal Misc Suspension of Sentence Application (Appeal) No. 1144/2024 preferred by appellant-accused Deva Saharia @ Shanidev Son of Shri Hari Charan is hereby dismissed.

14. List this Criminal Appeal in the month of December, 2025. MONU /36 (ASHOK KUMAR JAIN),J