State Of Rajasthan, Through Public Prosecutor v. For

Order

1. The instant application for suspension of sentence is preferred in pending appeal which was admitted on 04.09.2023 and filed aggrieved from order of conviction and sentence dated

11.07.2023 in Sessions Case No.07/2022 passed by learned Special Judge (POCSO Act Cases) No.2, Jaipur Metro-I whereby appellant was convicted for offence under Sections 384 IPC, 3/4 POSCO Act and sentenced accordingly.

2. The first SOS application was dismissed by this Court on

27.09.2023.

3. Learned counsel for petitioner submitted that appellant was on bail during trial and he did not misused the liberty granted to him. He further submitted that as per prosecution the age of [2025:RJ-JP:1032] (2 of 6) [SOSA-1364/2024] victim was less than 18 years but no reliable document to establish the age of victim was produced by the prosecution. He further submitted that the biological parents of victim were not examined by the prosecution and adopted parents were not aware about the date of birth of victim. He further submitted that as per facts narrated by prosecution the victim was contacted for treatment of diabetes but no document in support of claim of prosecution was filed on record. He further submitted that the story narrated by victim is highly improbable and only on missing of jewellery, complaint was registered. He also referred the record and submitted that no video or photograph was recovered allegedly used to claim blackmailing by present petitioner. He also referred statement of PW-11 Sonal Saraf and PW-10 Vishal Soni and submitted that the contradictory statement of both the witnesses are enough to discard the story of prosecution. He also submitted that nowhere it was established that the petitioner accused has ever attempted to pledge or sell jewellery of complainant with Muthoot or Vishal Soni. He specifically referred the process of trial adopted by the trial court and submitted that it is a case of mistrial and due to mistrial the appellant has suffered in the instant case. He further referred the statement of witnesses and submitted that there was a dispute with uncle of victim relating to financial transaction and due to this animosity, a police case was registered against the appellant. He further referred the cross-examination of several witnesses and submitted that without any evidence the appellant was convicted and sentenced, therefore he is liable to be released on bail. [2025:RJ-JP:1032] (3 of 6) [SOSA-1364/2024]

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant submitted that due to poor investigation by police, proper facts were not produced with charge-sheet. He also submitted that complainant has submitted CD to establish involvement of present appellant but same was not taken on record.

5. Heard learned counsel for parties along with learned Public Prosecutor. Perused the record.

6. While considering first SOS application on 27.09.2023, we have considered same issues including issue relating to determination of age and also contradictions in the statement of witnesses. We are reproducing the following paras from order dated 27.09.2023 as under:

5. Firstly, in this case the age of victim was questioned and as per available record produced before the court, the date of birth of victim claimed by prosecution was 29.04.2004 and evidence of PW-8 and PW-9 were led to establish the age of victim. Learned trial court after considering the material on record and also the evidence on record had come to a conclusion that date of birth of victim is 29.04.2004. The evidence on record clearly suggests that no other documents or evidence were produced in defence to contradict aforesaid claim. Recently, Hon’ble Supreme Court in case of P. Yuvaprakash vs State Rep. By Inspector Of Police [2023 INSC 626] considered the provisions of JJ Act and also of POCSO Act and held that documents such as transfer certificate and that of admission [2025:RJ-JP:1032] (4 of 6) [SOSA-1364/2024] are not what Section 94 (2)(i) of JJ Act mandates but if birth certificate as prescribed under Section 94 (2)(ii) of JJ Act is also not available then medical ossification test is a viable solution. Here in this case, we are dealing at the stage of application for suspension of sentence so we cannot enter into merits of determination by learned trial court.

6. Here in this case, admittedly victim, examined as PW-1 and her non-biological mother was examined as PW-2. In this case none of the biological parents was examined but it clearly impacts the case of prosecution or not, can only be considered at final stage.

7. There was delay in reporting the matter to the police but to assess the case of prosecution it is necessary to go through the totality of evidence of prosecution. PW-16 (Sh. Mohan Meena-IO) admitted in cross-examination that at the time of registration of Ex.P-1 victim was terrified. Here in this case, though this PW-16 admitted that he did not seized or procured call logs, chat, photo or video from mobile phone of victim and appellant. In this case, the sequence of event as indicated by PW-1 (victim), PW-2 (mother victim) and PW-4 (brother of PW-2) clearly indicated that present appellant who is almost double the age of victim after developing acquaintances, lured or misused the relation and committed sexual assault including penetration and other acts which were further explained in Ex.P-5, when victim was examined by PW-5 (Dr. Ankita Choudhary) though there were no injuries on persona or genital of victim but the narration of incident by PW-1 was well recorded by PW-5 in Ex.P-5. [2025:RJ-JP:1032] (5 of 6) [SOSA-1364/2024]

8. We have gone through the statement recorded under Section 164 Cr.P.C. and exhibited as Ex.P-4 by the prosecution also indicated that whatever she narrated in Section 164 Cr.P.C., she just corroborated the same in the deposition before the court. The appellant just om pretext to teach teaching mathematics, came in contact with victim. Thereafter, he not only persuaded her to deliver money but also obtained gold jewelry. The gold jewelries were pledged or attempted to sell, which was further verified by PW-10 (Vishal Soni), PW-11 (Sonam Saraf) and PW-12 (Vikas Kumar Bhatia).

9. At this stage, it is not possible for us to express any opinion on merits of the case. Present appellant was released on bail in pursuance of order dated 21.04.2022 in S.B. Criminal 2nd Bail Application No.5915/2022.

10. As regard to present matter is concerned, we have gone through the material on record including the statements of PW-1 and position of appellant as teacher in the matter. Hon’ble Supreme Court in case of Shakuntala Vs. State of UP (Criminal Appeal No.876/2021 order dated 07.09.2021) specifically considered the issue held that gravity and seriousness of the offence are required to be considered at the time of grant of bail.”

7. The grounds of delay, age and transaction relating to jewellery were considered by this Court while dismissing application for suspension of sentence on 27.09.2023 and for sake of brevity we are not re-considering those arguments. This Court has already dismissed the arguments as advanced by learned counsel for appellant in first SOS application No.1257/2023. [2025:RJ-JP:1032] (6 of 6) [SOSA-1364/2024]

8. We have considered the contradictions in the statement of witnesses as pointed out by learned counsel for appellant and also the fact that appellant was on bail during trial. In para No.9 as referred hereinabove we have reproduced that the appellant was released on bail, during trial in pursuant to order dated

21.04.2022.

9. Herein the sequence of events as referred the prosecution and also the material on record were considered by the trial court and it was found that after developing acquaintance and using influence, the appellant herein has lured victim and extorted money and jewellery from her. The grounds raised by learned counsel can only be considered when this appeal will come up for hearing but not at this stage.

10. The appellant has served more than 2 years out of awarded sentence of 10 years and same is quite less than 50 percent though 50 percent is not a rule but looking to gravity of charge against the appellant, I am of considered view that the grounds as raised by learned counsel for appellant are not sufficient to release appellant on bail, at this stage.

11. Accordingly, second SOS application is hereby dismissed. Misc. application stands disposed of.

12. List for hearing before regular roaster in the month of April,

2025. PREETI VALECHA /05 (ASHOK KUMAR JAIN),J