State Of Rajasthan, Through PP vs For Appellant(s)

Mr. Devi Singh, PP with Mr. Gaurav Gupta, AAAG Mr. Intjar Ali HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order REPORTABLE 01/05/2025

1. The instant suspension of sentence application is preferred by the appellant-applicant accused Sonu @ Smart @ Wasim Khan (hereinafter referred as ‘the appellant’) in pending appeal filed aggrieved from judgment of conviction and sentence dated

20.01.2024 in Sessions Case No.12/2022 passed by learned Special Judge, (POCSO Act Cases), Jhunjhunu, whereby this appellant accused was convicted and sentenced under Sections [2025:RJ-JP:18774] (2 of 9) [SOSA-1456/2024] 376(2)(n) of IPC and Section 5(L)/6 of POCSO Act. The maximum sentence awarded to the appellant is 20 years.

2. Learned counsel for the appellant submits that this is a false and fabricated case wherein the present appellant accused was framed only at the instance of mother of victim as she was having a matrimonial dispute with her husband Abdul Aziz. He further referred judgment dated 20.01.2024 in Sessions Case No.65/2019 tilted as State of Rajasthan Vs. Abdul Aziz passed by the same Court on very same day and submitted that the evidence of Sessions Case No.65/2019 was considered in this case to convict the present appellant accused. He specifically referred the evidence of both the cases and submitted that the trial Judge has not applied its own mind while convicting present appellant accused for a period of 20 years. He also submitted that evidence recorded against Abdul Aziz was referred and relied in the instant case to convict the present appellant. He also submitted that the appellant accused was juvenile (CCL) on date of incident and his date of birth was proved as 03.08.1999 and on basis of this, he was between 16 to 18 years and the case was forwarded after preliminary assessment under Section 15 of Juvenile Justice Act, but without safeguard under the law the trial was conducted. He further submitted that in the instant case the blood sample of accused were collected and same were sent to FSL for examination for matching with lower (lagging) of victim but the samples were not matching with present appellant but the trial Court has observed that FSL report is against the appellant. He further submits that in the instant case, prosecution has [2025:RJ-JP:18774] (3 of 9) [SOSA-1456/2024] examined only 13 witnesses whereas the judgment indicate that 17 witnesses were examined. He further submits that total 28 documents were exhibited by prosecution but the judgment indicate that FSL/DNA Report is exhibited as Ex.P-33. Learned counsel has further submitted that the trial Court has referred statement of PW-6 Sakendra Singh whereas no such witness was examined by the trial Court. He also referred Para No.13 of judgment and submitted that Neel Kamal was referred as PW-12 whereas at page No.21 Neel Kamal was referred as PW-17 and both the evidence are different. He also referred the statement of Mamta Saraswat who was examined as PW-7 against the present appellant but in another case she was examined as PW-15 and trial Court has referred the statement of said case against present appellant. He pointed out that the trial Judge has not considered the material on record while convicting present appellant accused.

3. He further submitted that the name of present appellant is Wasim Khan and not Sonu but in Ex.P-1 Report submitted by victim name of Sonu was mentioned. He further referred Ex.P-1 and statement of victim recorded under Section 164 CrPC and exhibited as Ex.P-2 and submitted that this report was registered only to settle score with Abdul Aziz (father of victim) at behest of mother and step father of victim. He further submitted that the evidence clearly suggests that second husband of mother of victim is a police officer and under his influence, the instant case was registered and the accused appellant was falsely framed. He further submits that no allegation was found proved by the trial Court and the discrepancies in the statement of victim clearly [2025:RJ-JP:18774] (4 of 9) [SOSA-1456/2024] indicate that on 07.06.2019, no rape was committed with victim. He further referred the cross-examination of Investigating Officer PW-7 and submitted that the claim of victim was found false and victim has failed to prove that on 07.06.2019, she was raped by present appellant accused. He further referred the statement of PW-1 victim, PW-2 mother of victim and PW-3 sister of victim and submitted that the discrepancies in the statements of these witnesses clearly indicate that the allegations against present appellant accused are false. He further referred the cross- examination of PW-1 and submitted that this victim has left her home on multiple times, at least on two occasions. He also submits that there is an ongoing litigation between mother of victim and Abdul Aziz and due to this animosity, the appellant known to Abdul Aziz was falsely implicated. He further referred the statement of PW-10 Dr. Sonu Bhatia and submitted that no abnormality or injury was found on genital of victim. He further submits that sister of victim PW-3 has not supported the case of victim. Learned counsel has further referred the cross-examination of PW-12 Neel Kamal (I.O.) and submitted that the statement of family members were not recorded by PW-12. He also raised doubt on determination of age of victim and submitted that the evidence of PW-13 is not trustworthy. At last, he submitted that this appellant accused is in custody for last more than 4 years and he is entitled to be released on bail, as disposal of appeal will take its own time.

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for the complainant. [2025:RJ-JP:18774] (5 of 9) [SOSA-1456/2024]

5. Learned counsel for the complainant submits that the complainant has filed a report that father of victim Abdul Aziz with two boys are constantly and continuously committing rape with her. He also submits that this appellant is having checkered history of criminal cases as three cases were registered against him and one includes escape from observation home. He further submits that the victim has supported the case of prosecution and the statement of victim is trustworthy, minor on date of incident. He further submitted that the appellant remained in custody from his detention in the case and the allegations were fully supported by victim, her sister and mother. At last, he submits that if there is any clerical error in passing the judgment, then it does not impact the case of prosecution or complainant.

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

7. On basis of report Ex.P-1 submitted by victim against her father and two other boys Dev and Sonu for committing rape with her, FIR No.56/2019 under Section 376 D IPC and Section 3/4 POCSO Act was registered at Police Station Malsisar, District Jhunjhunu. The victim was medically examined on 07.06.2019 and her statement under Section 164 CrPC was recorded on

12.06.2019. The appellant was arrested on 06.10.2021. After investigation, the police has filed a charge-sheet against another juvenile (age 15 years) and present appellant. After preliminary assessment on 14.12.2021, considering the age of present appellant as 16 years 9 months and 28 days, the matter was examined and transferred to learned Special Judge, POCSO Act [2025:RJ-JP:18774] (6 of 9) [SOSA-1456/2024] cases. After framing the charge, prosecution has examined as many as 13 witnesses and exhibited 28 documents. The appellant was examined under Section 313 CrPC and he opted not to submit any defence evidence. Three documents were exhibited in defence. This appellant accused was convicted under Section 376(2)(n) IPC and Section 5(L)/6 of POCSO Act and sentenced to undergo rigorous imprisonment of 20 years with fine.

8. A perusal of record of the case and also the judgment dated

20.01.2024 in Sessions Case No.65/2019 clearly indicate that learned trial Court has passed two judgments on very same day, one relating to Abdul Aziz and other to present one. Both the cases were arising out of same FIR No.56/2019 registered at Police Station Malsisar, District Jhunjhunu but the process of trial was different. In Sessions Case No.65/2019, 17 witness were examined and 30 documents were exhibited and DW-1 was examined as defence witness.

9. A perusal of judgment in the instant case clearly indicate that the trial Judge has shirked her responsibility and neglected her duty by not dictating the judgment in toto, rather, learned Judge has used methodology of cut, copy and paste, which shows that the judgment is in fact written by concerned Stenographer/Clerk. After preparing the judgment, the learned Presiding Officer has not taken care to read and correct the judgment so that irrelevant paragraphs may be striked out. This again shows that learned trial Judge instead of devoting time for judgment writing, was busy in other irrelevant work and leaving the judgment writing upon Stenographer or P.A. It is duty of a [2025:RJ-JP:18774] (7 of 9) [SOSA-1456/2024] Judge to consider the factual aspect of the case and after applying the proper law, write a judgment.

10. In U.S. Courts, role of a Judge has been defined as a person who presides over the trial from an elevated platform called dias. The Judge has five basic tasks and these are:- (I) Preside over the proceedings and see that order is maintained; (ii) To determine whether any of the evidence that the parties want to use is illegal or improper; (iii) To ensure applicability of law on facts of the case and maintain standard to decide the case; (iv) To determine the real facts of the case and decide accordingly; (v) To sentence convicted criminals appropriately.

11. Since this is a bail (SOS) order, therefore, we are not burdening ourselves on this issue but certainly this is an alarming situation that a Senior District Judge posted in POCSO Court is not devoting time to write a judgment rather depending upon a Stenographer. It is the duty of a Judge to dictate judgment from top to bottom which means entire judgment from para No.1 to last para must be in steno diary. If it is not available, it means the Judge is shirking his or her responsibility and such a Judicial Officer is not entitled to remain in service of Judiciary.

12. Here in this case, we have gone through Ex.P-1 wherein the present appellant was named in FIR and further in statement under Section 164 CrPC, the victim has named the present appellant as the person who committed rape with her. The victim [2025:RJ-JP:18774] (8 of 9) [SOSA-1456/2024] has consistently named present appellant though one of the incident of 07.06.2019 was not proved but PW-1 has clearly mentioned that she was raped on multiple occasions, thus the allegations were for committing rape more than one time.

13. The evidence on record suggests that the date of birth of victim was 12.11.2004 and same was proved by PW-13 Karanveer Singh. The trial Court has concluded that the victim was less than 16 years of age. The age of victim is required to be determined in accordance with provision under Section 94 of Juvenile Justice Act,

2015. The objections or grounds to challenge the age can be considered at the time of final adjudication.

14. Here in this case, neither FSL nor medical was proved by the prosecution against appellant though findings of trial Court is based on evidence in Sessions Case No.65/2019, but the oral testimony of victim is against the appellant and her age is less than 16 years. This appellant is in custody for last more than 3 years 8 months and 10 days.

15. Having considered the age of victim and oral deposition of victim, it is not a fit case wherein despite discrepancies in the judgment of trial Court, the appellant accused be released on bail after allowing application for suspension of sentence.

16. As a result, the suspension of sentence application preferred by the appellant accused Sonu @ Smart @ Wasim Khan is hereby dismissed.

17. A copy of this order be sent to the Hon’ble Judge, In-charge of the Rajasthan Judicial Academy to impart training to learned Presiding Officer, about judgment writing. [2025:RJ-JP:18774] (9 of 9) [SOSA-1456/2024]

18. The Registrar General is directed to make a copy of this order as a part of her ACR for year 2024 but after obtaining her comments.

19. List the appeal for hearing in the month of October, 2025. MR/7 (ASHOK KUMAR JAIN),J