State Of Rajasthan, Through P.p v. Connected

: Mr. Rajendra Singh Tanwar For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment / Order 30/04/2025 S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1386/2023:

1. The instant application for suspension of sentence is preferred by appellant-Ajay S/o Heeralal aggrieved from order of conviction and sentence dated 04.08.2023 in Sessions Case No94/2022 passed by learned Special Judhe (POCSO Act Cases) No.2, Bundi whereby appellant was convicted for offence under [2025:RJ-JP:18286] (2 of 5) [SOSA-1386/2023] Sections 376 IPC alternative 3/4 of POCSO Act, 376(2)(N) alternative Section 5(l)/6 of POCSO Act and 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 victim. He further referred the facts of the case and submitted that appellant was neither named in FIR nor during initial investigation of case registered by maternal grandfather of victim. He further submitted that during investigation, victim has changed her version and later she named present appellant and also her maternal grandfather for committing rape with her. He further submitted that during investigation, police has collected sample of present appellant also of co-accused and sent them to match with sample of fetus conceived by victim but FSL report clearly indicated that DNA of fetus is not matching either with present appellant or other accused Ramlal. He further referred the finding recorded by the trial court and submitted that the police has not collected sample of maternal grandfather (Nana) of victim and there is all possibility that Nana of victim, who also faced trial with present appellant was involved in making victim pregnant as he was also charged for committing rape with victim. He also submitted that the trial court has ignored discrepancies and contradictions sufficient to dent the case of prosecution. He also referred the evidence of age of victim and submitted that prosecution has failed to establish the age of victim and on failure to establish the age, the victim could not be considered as minor on date of incident. He also referred statement under Section 161 Cr.P.C. and submitted that after [2025:RJ-JP:18286] (3 of 5) [SOSA-1386/2023] recovery the statement under Section 161 Cr.P.C. was recorded by PW-8 Rekha. He further submitted that statement of victim clearly indicated that she was subjected to rape by other persons and her maternal grandfather (Nana) was also aware about such persons. He further referred the statement of PW-15 Dr. Nisha Sharma and submitted that no injuries were found on genital of victim though victim was having pregnancy of 21 weeks. At last, he submitted that there is no evidence except oral evidence of victim, therefore appellant be released on bail.

3. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate along with intimation slip and same are taken on record.

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

5. On the basis of report Ex.P-1 submitted by one of the accused Prabhu Lal (Nana of victim), FIR No.170/2022 under Sections 376(2)(n), 376AB and 3/4 of POCSO Act was registered at P.S. Taleda, Bundi. After investigation, police has filed charge- sheet against Ajay, Ramlal and Prabhu Lal under Sections 376, 376(2)(n), 376AB, 376D, 120B IPC and 3/4, 5(n)(ii), 5(l) and 5(m)/6 of POCSO Act.

6. Learned trial court has framed charge under Section 376 rws 120B, 376(2)(n) IPC and 3/4, 5(l)/6 of POCSO Act, Section 376AB alternative Section 5(m)/6 of POCSO Act and 376DB alternatively 5(g)/6 of POCSO Act.

7. The prosecution has examined as many as 19 witnesses and exhibited 40 documents. The accused was examined under Section 313 Cr.P.C. and they produced DW-1 Raghuveer Singh and [2025:RJ-JP:18286] (4 of 5) [SOSA-1386/2023] Ex.D1 and D2 were exhibited. After considering the evidence both documentary and oral in relation to Section 94 of JJ Act the trial court has concluded that date of birth of victim was 04.10.2010 and on date of first incident her age was 11 years 2 months 27 days, thus the age of victim is less than 12 years. The trial court has convicted Ajay and Ramlal under Sections Sections 376, 376(2)(n) IPC and 3/4, 5(l)/6 of POCSO Act and Section 376AB alternatively section 5(m)/6 of POCSO Act. The maximum sentence awarded to appellant is 20 years.

8. The appellant remained in custody from his arrest in the instant case and till date he has served more than 3 years 1 month 26 days. Learned counsel for appellant has referred FSL report Ex.C1, which indicated that human blood was collected on leggings and underwear of victim but semen could not be detected on both the clothes. Similarly human blood was detected in vaginal swab of victim. Blood sample of baby of victim was also collected. The conclusion in report indicated that baby of victim is biological son of victim but not biological son of accused Ajay and Ramlal. Neither of the DNA profile of Ajay and Ramlal is matching with baby of victim in any manner.

9. A perusal of report indicated that same was registered by Prabhulal against appellant and in statement of victim, recorded under Section 164 Cr.P.C. exhibited as Ex.P-9, she has named Ramlal and Ajay for committing rape with her mentally retarded mother. The victim has alleged that her Nana is assisting in committal of rape by both the accused Ajay and Ramlal. The statement of victim before learned Judicial Officer while recording statement under Section 164 Cr.P.C. clearly indicated that she [2025:RJ-JP:18286] (5 of 5) [SOSA-1386/2023] wanted Ramlal and Ajay should go behind bars. This victim was further examined as PW-1 before the trial court on 20.07.2022 and we have gone through the statement of victim. Also considered statement of PW-15 Dr. Nisha Sharma.

10. After considering the entire material on record, I am of considered view that victim has made serious allegations against both the accused Ajay and Ramlal for committing rape continuously for several months though FSL report has not supported that appellant was reason behind her pregnancy but still victim is less than 12 years therefore looking to gravity of charge and heinousness of offence, I am of considered view that it is not a fit case to enlarge appellant on bail.

11. Accordingly, SOS application is hereby dismissed. Misc. application stands disposed of. S.B. Criminal Appeal (Sb) No. 3213/2023: List along with Criminal Appeal No.2621/2023 in October,

2025. PREETI VALECHA /21-22 (ASHOK KUMAR JAIN),J