State Of Rajasthan, Through P.p v. For

: Mr. Anupam Sharma For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Mohar Pal Meena HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 07/07/2025 Order

1. Instant SOS is preferred by appellant accused Kapil in pending appeal filed aggrieved from judgment of conviction and sentence dated 10.01.2024 in sessions case no. 6/2023 passed by learned Special Judge (POCSO Act cases) no.1, Alwar whereby this appellant accused was convicted under Sections 363, 366, 376(2) (n), 354D and 506 IPC and Section 5(L)/6 of POCSO Act. The maximum sentence awarded to this appellant is 20 years.

2. Learned counsel for appellant while relying upon grounds of appeal submits that the appellant is an innocent person and he has been falsely been implicated. He further submitted that incident commenced from August, 2022 and thereafter on [2025:RJ-JP:26104] (2 of 5) [SOSA-1236/2024] November, 2022 the report was registered on 27.11.2022 and there is no explanation of delay by prosecution. He further submitted that the prosecution has claimed age of victim as 16 years on basis of date of birth dated 11.08.2007 and examined PW-3 Narendra Kumar in respect of claim of prosecution but the record indicate that victim was directly admitted to Class-II and she was admitted by PW-2 father of victim. He further submitted that without any birth certificate or explanation about delay in admission the victim was directly admitted in higher class and the date of birth is recorded on the basis of estimated age which is not a correct age. He further submitted that victim has not raised any alarm when she was taken on motor bike and she has also not complained after return. He further submitted that even PW-12 Satish Chand (landlord) was also examined and he has turned hostile and not supported the case of prosecution. He further submitted that the medical report also suggested that no injuries were found on genital of victim. He also submitted that FSL report Ex. C/1 is not helpful for prosecution as nothing was found after examination of samples. He further referred cross-examination of PW-5 (I.O) and submitted that there is no independent evidence to corroborate the allegations of victim. He also referred evidence of PW-1 victim and submitted that her cross-examination contradicts the case of prosecution. He further submitted that initially report was registered under the IT Act and charge-sheet was also filed under the IT Act but the trial court has acquitted the appellant accused from charge under Section IT Act. He also submitted that this appellant accused is in custody for more than [2025:RJ-JP:26104] (3 of 5) [SOSA-1236/2024] two years and 9 months and disposal of appeal will take its own time.

3. Aforesaid contentions were opposed by learned counsel for complainant and learned public prosecutor. Learned public prosecutor has submitted custody certificate and same is taken on record. Learned counsel for complainant has submitted that the age of victim is between 15 to 16 years and she has corroborated the incident from her statement under Sections 161 to the Court. He further submitted that the photographs Ex. P/10 to P/12 were also exhibited by prosecution to show that the indecent photographs were captured by appellant accused and same were made viral through social media.

4. Heard learned counsel for parties and learned public prosecutor. Perused the record.

5. On the basis of report Ex. P/1 lodged by PW-2 father of victim about administering seductive drug by way of cold drink and further capturing of photograph and thereafter creating pressure to maintain physical relationship and sharing them on social media by appellant accused FIR no. 403/2022 was registered at P.S. Kathumar, District Alwar on 27.11.2022. During investigation, the statement of victim was recorded under Sections 161 and 164 Cr.P.C. and further her medical was conducted and after investigation a charge-sheet has been filed against the appellant accused. After framing the charge, the prosecution has examined 12 witnesses and exhibited 26 documents. The Court has also exhibited one document Ex. C/1. The accused was examined under Section 313 Cr.P.C. but he has not submitted any defence evidence. [2025:RJ-JP:26104] (4 of 5) [SOSA-1236/2024]

6. On the basis of material on record, the trial court has determined the age of victim as less than 16 years on the basis of date of birth 11.08.2007. We have considered the statement of PW-2 father of victim and PW-3 Narendra Kumar (Headmaster). The grounds raised by learned counsel can be considered at the time of final adjudication.

7. At this stage, looking to material available on record and evidence on record, we may apply Section 94 of JJ Act for determination of age, and the trial court has determined age of victim as less than 16 years of age on date of incident.

8. The report Ex. P/1 clearly suggests that victim came in contact in August, 2022 and since then there were number of incident till 26.11.2022 and for last event on 26.11.2022, the report was registered on 27.11.2022. The reasons of delay were explained in report was considered by trial court. Looking to age of victim the trial court has considered the reasons of delay as victim in statement under Section 164 Cr.P.C. has explained the incidents and later recording her statement as PW-1 before the Court she has also corroborated the incidents. The evidence of PW-1 clearly suggests that despite her refusal, the accused has sent indecent photograph on WhatsApp and later he uploaded photographs on facebook. The evidence also suggests that accused has also threatened to pour acid on her. The cross- examination suggests that Ex P/10 to P/12 were shared by this victim to accused but the cross-examination further suggests that photographs were sent by accused to her brother. We have considered cross-examination of PW-5 Suresh Kumar which indicate that victim and accused were friends as they belong to [2025:RJ-JP:26104] (5 of 5) [SOSA-1236/2024] same village. The brother of victim has submitted photograph Ex. P/10 to P/12 to police.

9. Having considered the fact that the age of victim is less than 16 years and moreover victim has deposed against the appellant accused, therefore, this is not a fit case to grant SOS to this appellant accused.

10. The appellant accused is in custody since his arrest and period of custody is more than 2 years 9 months and 19 days but the maximum sentence is 20 years and looking to gravity of act committed by this appellant accused and the age of victim, the appellant is not entitled to be released on bail.

11. Hence, the instant SOS application is hereby dismissed.

12. List this appeal for hearing in the month of November, 2025. CHETNA BEHRANI /6 (ASHOK KUMAR JAIN),J