State Of Rajastahn, Through Pp v. For

: Mr. Shyam Bihari Gautam For Respondent(s) : Mr. Vijay Singh Yadav, PP with Mr. Gaurav Gupta, AGA HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 30/05/2025 Order

1. Instant SOS is preferred by appellant accused- Shivam Kumar @ Shubham in pending appeal filed aggrieved from judgment of conviction and sentence dated 19.10.2024 in sessions case no. 58/2021 passed by learned Special Judge, POCSO Act cases no.2, Jaipur Metropolitan-II whereby this appellant accused was convicted and sentenced under Sections 363, 366, 344, 376(2)(n) IPC and Section 5(L)/6 of POCSO Act. The maximum sentence awarded to appellant is 20 years. [2025:RJ-JP:22877] (2 of 6) [SOSA-2170/2024]

2. Learned counsel for appellant submits that appellant is an innocent person and he was falsely implicated by complainant. He further submitted that the father of victim has registered a report about missing of her 16 year and 10 months old daughter without any intimation. He further submits that after recovery of victim she was medically examined and no evidence of forcible rape were found by doctor. He further submitted that after the recovery the statement of victim was recorded under Section 161 Cr.P.C. wherein she admitted that she voluntarily left her home and was a consenting party. He also submitted that even in her statement under Section 164 Cr.P.C. Ex. P/6 victim has clearly stated to be a consenting party and every act was committed with her consent only. He further submitted that when this victim was examined before the trial court as PW-2 even then she has not made any specific allegation against the appellant accused and in her cross-examination her admission indicate that she voluntarily left home and was a consenting party with present appellant. Learned counsel further referred the statement of mother of victim recorded as PW-4 and submitted that she has not raised doubt on anyone and her evidence is also not supportive for prosecution. He also submitted that PW-1 Dr. Rajni and PW- 13 Dr. Kiran who examined the victim have deposed that there were no sign of forcible rape with victim.

3. Learned counsel further referred the statement of father of victim PW-3 and submitted that after recovery, the victim [2025:RJ-JP:22877] (3 of 6) [SOSA-2170/2024] has told him that she has voluntarily left her home and she remained voluntarily in company of appellant. Learned counsel has further submitted that there is no FSL report on record to establish that victim was forcibly raped by appellant accused. He also raised erroneous determination of age by trial court and submitted that the trial court has drawn a wrong conclusion ignoring the evidence on record. At last, he submitted that this appellant was on bail during trial and he has not misused the liberty granted to him

4. Aforesaid contentions were opposed by learned Public Prosecutor and submitted custody certificate and along with report received from P.S. Nahargarh Road (North) and also intimation slip to complainant.

5. Heard learned for appellant and learned Public Prosecutor. Perused the record.

6. On the basis of report Ex. P/8 lodged by father of victim about missing of her minor daughter on 15.07.2021 FIR no. 118/2021 was registered on 15.07.2021 at P.S. Nahargarh Road, Jaipur City (North) under Section 363 IPC. In pursuant to investigation victim was recovered on 10.09.2021. Victim was medically examined by PW-1 Dr. Rajni and PW-13 Dr. Kiran. The report indicate that no injuries were found on genital of victim. The statement of victim was further recorded under Section 164 Cr.P.C. wherein she stated about marriage with appellant accused on 26.07.2021. After investigation police has filed a charge-sheet against appellant accused. After framing of charge, the prosecution [2025:RJ-JP:22877] (4 of 6) [SOSA-2170/2024] has examined 17 witnesses and exhibited 29 documents. The accused was examined under Section 313 Cr.P.C. and in defence he has examined DW-1 Satyaveer Singh, DW-2 Pravesh Kumar and DW-3 Mundra Devi and exhibited four documents. The trial court has convicted the present appellant and accordingly passed an order of sentence against him.

7. The trial court has considered the evidence about age of victim and on the basis of date of birth 20.09.2004 has determined the age of victim as 16 years 9 months and 25 days or between 16 to 18 years on date of incident. The grounds raised about determination of age may be considered at the time of final adjudication.

8. The report was registered against unknown person but after recovery the statement of victim was recorded under Section 161 and 164 Cr.P.C. and further she was medically examined and we have considered these statements and also medical report along with statement of doctors, PW-1 and PW-13.

9. At this stage of deciding SOS, it is not possible for us to express any opinion on merits of the case about consent of victim in elopement and further solemnizing marriage with appellant accused. The age of victim was found to be less than 18 years, therefore, consent is immaterial in such eventuality.

10. We have considered statement of victim recorded as PW-2 particularly her cross-examination and as referred by learned counsel for appellant. The father and mother were [2025:RJ-JP:22877] (5 of 6) [SOSA-2170/2024] examined as PW-3 and PW-4 and we have considered their statement as well.

11. This appellant accused was on bail during trial in pursuant to order dated 04.10.2021 in bail application no. 15832/2021 and disposal of appeal will take its own time. There is no criminal antecedent against the appellant accused.

12. Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellant can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellant accused- Shivam Kumar @ Shubham Son Of Shri Dharamveer Singh is suspended till disposal of appeal with the condition that he would executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 11.09.2025 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. After release of appellant on bail, he will not indulge in any criminal activity and if it is found that he is involved in any criminal activity, the order shall be recalled.

2. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

3. That if the applicant(s) changes the place of residence, he will give in writing his [2025:RJ-JP:22877] (6 of 6) [SOSA-2170/2024] changed address to the trial Court as well as to the counsel in the High Court.

4. Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court.

5. That the appellant will not try to contact directly or directly with victim or her family members. Misc. Application stands disposed of. A copy of this order be sent to learned trial court

14. through E-mail. CHETNA BEHRANI /8(SOSA) (ASHOK KUMAR JAIN),J