State Of Rajasthan, Through Public Prosecutor v. For

: Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 12/07/2025 Order

1. Instant SOS application is preferred by appellant accused Butta @ Buta Singh in pending appeal filed aggrieved from order of judgment and conviction and sentence dated 06.08.2024 in sessions case no. 3/2024 passed by learned Special Judge, POCSO Act cases no.3, Alwar whereby the appellant accused was convicted and sentenced under Section 376 IPC and Section 3/4 of POCSO Act. The maximum sentence awarded to present appellant is 10 years.

2. Learned counsel for appellant while relying upon grounds of appeal submitted that appellant is an innocent person and he was falsely implicated by complainant. He further submitted that in report Ex. P/4, statement under Sections 161 and 164 Cr.P.C. the name of victim is shown as “X” whereas the school record Ex. 1 [2025:RJ-JP:27229] (2 of 6) [SOSA-1670/2024] pertains to another person “Y” and both are different persons. He further submitted that same is also evident from certificate Ex. 3 and SR register Ex. 2. He also submitted that the evidence on this issue raised a clout about the production of evidence by the prosecution. He also submitted on basis of record of any other person, the victim was claimed as child. He also submitted that victim was examined as PW-2 wherein also she stated her name as “Y”, and same is contrary to record. He further referred cross- examination of PW-1 and submitted that the age of victim is around 18 years. He further referred cross-examination of PW-4 mother of victim and submitted that the age documents were not produced at the time of admission in school and same is further admitted by investigating officer PW-14. Learned counsel has further referred ossification age of victim and submitted that as per radiologist, the age of victim is 15-16 years and there is a variation of two years. He also referred medical report Ex. P/5 and submitted that just after the incident no injuries were found on body of victim. Learned counsel has further referred process of collection of sample and submitted that after collection of sample by doctor they were remained in possession of doctor in unattended condition but there is no evidence to show that these samples remained in secure condition and were intact till deposition. He further referred Malikhana register and submitted that there is no evidence to show that the samples remained intact till deposition at the FSL. He also referred the discrepancies in the statement of witnesses and animosity between the parties and submitted that only because of animosity the appellant [2025:RJ-JP:27229] (3 of 6) [SOSA-1670/2024] accused was implicated. He further referred detailed cross- examination of investigation officer PW-14 and submitted that the clouds created were not answered by the prosecution and the trial court has ignored the material contradictions available on record. He further referred discrepancies about the FTA card and submitted that the FSL report is not a reliable document to presume corroboration of rape. At last, he submitted that for a highly improbable incident, present appellant accused was sentenced by the learned trial court and he is in custody for more than one year and eight months and entitled to be released on bail (SOS).

3. Aforesaid contentions were opposed by learned public prosecutor and he submitted custody certificate.

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

5. On the basis of report Ex. P/4 lodged by victim PW-2 with her father PW-7 about rape by appellant accused on 25.11.2023 FIR no. 156/2023 under Section 376 IPC and Section 3/4 of POCSO Act was registered at P.S. Mahila Police Thana, Bhiwadi, District Alwar. After investigation police has filed a charge-sheet against appellant accused. After framing the charge, the prosecution has examined 16 witnesses and exhibited 27 documents. The court has exhibited Ex. C/1 FSL and DNA report. The accused examined under Section 313 Cr.P.C. and he has not submitted any defence evidence.

6. The prosecution has examined PW-1 Satyapal Singh to prove age of victim and as per him “X” who is daughter of PW-4 was [2025:RJ-JP:27229] (4 of 6) [SOSA-1670/2024] admitted in Class-I on 22.11.2012 and her date of birth is

11.05.2007. In cross-examination no specific question is asked whether “X” and “Y” are same girl or not. PW-2 victim was examined as prosecution witness and she has clarified that “X” and “Y” both are her name and she is known by “Y” name. This was also clarified by mother of victim PW-4. After clarification by PW-2 and PW-4 and also noticing that no witness is available to show that “X” and “Y” are different girls, it is not possible to accept the contention that the record is submitted in respect of “X” and the girl has alleged is “Y” rather the evidence suggests that “X” and “Y” are names of same girl. The evidence of PW-1, PW-4 and PW-7 clearly shows that no birth certificate is filed on record but the age has to be determined in accordance with provision under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. In case of P. Yuvaprakash Vs. State 2023 INSC 626, Hon’ble Supreme Court has considered order of precedence of consideration of documents under Section 94(2) of the Act.

7. The record suggests that victim was subjected to ossification test and the trial court has referred evidence of PW-5 Dr. Divya Pratap Singh and as per report Ex. P/9, the age of victim is 15-16 years. The law over the point is crystal clear and Section 94(2)(i) of JJ Act provides that when there is school record or secondary school certificate then there is no need for any ossification test and same cannot be relied by any court. The evidence on record clearly suggest that the age of victim can be determined on the basis of evidence of PW-1, thus date of birth of victim is [2025:RJ-JP:27229] (5 of 6) [SOSA-1670/2024]

11.05.2007, and on date of incident 25.11.2023 and victim is between 16 to 17 years.

8. We have considered discrepancies about FTA card particularly after admission of doctor but the record suggests that this issue was considered by trial court and one FTA card was exhibited before the court whereas other FTA card used in case of State Vs. Ravi Kumar was in FSL, therefore, this issue can be raised at the time of final adjudication and not now.

9. Learned counsel has further referred issue of safe custody of samples particularly delay in deposition and also no injury upon body of victim. Herein this case, there is delay of one day in lodging report but the evidence clearly suggest that victim and accused are relatives and they are uncle and niece. There is no claim of any affair between them rather victim has alleged that she was forcibly raped by appellant accused and on her hue and cry, her mother PW-4 came to rescue her. PW-4 mother has corroborated the story.

10. On the basis of evidence the trial court has convicted the present appellant accused. Any discrepancy or contradiction as raised by learned counsel can be considered at the time of final adjudication and not now. Herein this case, the allegations are quite serious against appellant accused though present appellant accused is in custody for more than one year and eight months and seven days but the grounds raised by learned counsel are not sufficient to release him on bail during pendency of this appeal. Thus, the SOS application is liable to be dismissed. [2025:RJ-JP:27229] (6 of 6) [SOSA-1670/2024]

11. Thus, the instant SOS application preferred by appellant accused Butta @ Buta Singh is hereby dismissed.

12. List appeal for hearing in the month of November,2025. CHETNA BEHRANI /39(SOSA) (ASHOK KUMAR JAIN),J