State Of Rajasthan, Through P.p v. For

: Mr. Shantanu Bansal For Respondent(s) : Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 20/05/2025 Order

1. The instant application for suspension of sentence is preferred by appellant-Khiladi Bagariya @ Ramkhiladi Son Of Shri Gopal Bagariya in pending appeal filed aggrieved from order of conviction and sentence dated 25.11.2024 in Sessions Case No.10/2024 passed by learned Special Judge (POCSO Act Cases) No.3, Jaipur whereby appellant was convicted for offence under Sections 363, 366, 376 IPC and 3/4 of POCSO Act and sentenced accordingly.

2. Learned counsel for the appellant submitted that appellant is an innocent person and he was falsely implicated by complainant. He further submitted that on the basis of report lodged by PW-3 [2025:RJ-JP:21323] (2 of 6) [SOSA-2269/2024] father of victim, FIR was lodged under Section 363 IPC and no specific allegation of rape was made against appellant. He further submitted that after this report, victim was produced in police station by parents of victim and the recovery memo Ex.P-4 was prepared by police. He further submitted that during investigation, statement of victim was recorded under Section 164 Cr.P.C. (ex.P- 3) wherein victim has stated that she left her home on her own and after staying a night at Ashram she returned on next day. He submitted that as per report Ex.P-1 victim has left on 05.07.2023 whereas report was registered on 08.07.2023 and same is contrary to statement of victim made in Ex.P-23. He further submitted that report was registered after a delay of two days and explanation of delay was not offered by prosecution. He further submitted that after recovery of victim, no site plan was prepared at the instance of victim but this site plan was prepared at the instance of accused, after his arrest. He further submitted that one person Raichand examined as PW-6 and he turned hostile and not supported the case of prosecution. He also submitted that evidence on record suggested that the incident has happened at a different place than mentioned by police in its report. He further referred medical of victim and submitted that no injuries were found on genital of victim. He further submitted that even FSL/DNA report is not produced by prosecution to corroborate the version of victim PW-2. He also referred cross-examination of PW- 12 IO and submitted that from his deposition the allegation levelled by complainant were not proved. He also referred statement of DW-1 mother of victim and submitted that she has not supported the case of prosecution. At last, he submitted that [2025:RJ-JP:21323] (3 of 6) [SOSA-2269/2024] Rameshwar was also granted bail (SOS) by a Co-ordinate Bench and disposal of appeal will take its own time.

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-3 dated 08.07.2023 lodged by PW-3 father of victim about elopement of victim/kidnapping by Ram Khiladi and Rameshwar on 05.07.2023, FIR No.873/2023 under Section 363 IPC was registered at P.S. Muhana, Dist. Jaipur. During investigation, victim was recovered and her medical was conducted. The statement of victim was recorded under Sections 161 and 164 Cr.P.C. After investigation, police has filed a charge- sheet against appellant Ramkhiladi and Rameshwar. After framing charge, prosecution has examined 16 witnesses and exhibited 25 documents. Accused were examined under Section 313 Cr.P.C. and they submitted two witnesses DW-1 mother of victim and DW-2 Sayar Devi and exhibited 2 documents. Appellant was convicted under Sections 363, 366, 376 IPC and 3/4 of POCSO Act whereas Rameshwar was convicted under Sections 363, 366A IPC and 16/17 of POCSO Act. The maximum sentence awarded to appellant is 10 years. The appellant is in custody since his arrest on 05.12.2023. The total period of custody is more than 1 year and six months. Co-accused Rameshwar was granted bail (SOS) on 19.12.2024.

6. The trial court has determined the age of victim on the basis of evidence of PW-16 Manju Devi (Head-master of School) and the [2025:RJ-JP:21323] (4 of 6) [SOSA-2269/2024] document about date of birth as 10.03.2006. The age of victim is more than 17 years but less than 18 years. Any discrepancy about age of victim can be raised and considered only at the time of final adjudication.

7. After recovery of victim, she was medically examined by PW- 8 Dr. Sarita and she prepared report Ex.P-10 and according to her no injuries were found to indicate forcible rape. After registration of FIR, victim was recovered on 15.07.2023 and memo Ex.P4 was prepared which indicated that the parents of victim produced the victim before the police. The statement of victim was recorded under Section 164 Cr.P.C. wherein she named Ramkhiladi for committing rape at Ashram in Alwar where she stayed for a night. The statement of victim was further recorded as PW-2 before the trial court wherein also she named appellant for committing rape with her. Victim has deposed that the accused have dropped her at the resident of Raichand, who was examined as PW-6 and has turned hostile and not supported the case of prosecution. The father of victim was examined as PW-3 and he admitted that Ramkhiladi is not known to him and no rape was committed with victim. The mother of victim was examined as DW-1 in defence and she also admitted that no rape was committed by accused with victim. We have also considered the statement of PW-12 Gautam, PW-14 Ramdhan and PW-15 Dilip Kumar. The prosecution has not filed any FSL/DNA report though receipt of deposition of sample to FSL is exhibited as Ex.P-20.

8. The prosecution has not filed any FSL/DNA report and medical report has also not supported the version of victim. The entire material on record indicate that parents of victim denied [2025:RJ-JP:21323] (5 of 6) [SOSA-2269/2024] committal of rape by accused with victim and not supported the case of prosecution, whereas victim has eloped on 05.07.2023 and returned on next day though report was registered on 08.07.2023. The grounds raised by learned counsel for appellant requires consideration on merits at the time of final adjudication but looking to the entirety of facts and circumstances, it is a fit case to enlarge appellant on bail.

9. 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-Khiladi Bagariya @ Ramkhiladi Son Of Shri Gopal Bagariya 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 01.09.2025 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 changed [2025:RJ-JP:21323] (6 of 6) [SOSA-2269/2024] 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.

10. Misc. Application stands disposed of.

11. A copy of this order be sent to learned trial court through E- mail. PREETI VALECHA /12 (ASHOK KUMAR JAIN),J