Sunil Kumar Son of Bholaram Vs the State of Rajasthan

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[2025:RJ-JP:45825]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal 2^nd Misc Suspension Of Sentence Application (Appeal) No. 2172/2025

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In

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SB. Criminal Appeal No. 3297/2024

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Sunil Kumar Son Of Bholaram, Aged About 32 Years, Resident Of Barwadi Prasrampura, Police Station Udaipurwati, District Jhunjhunu (Raj.) (At Present Confind In District Jail Sikar)

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----Petitioner

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Versus

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The State Of Rajasthan, Through P.p.

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----Respondent

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For Petitioner(s)	: Mr. Mahendra Kumar Saini
For Respondent(s)	: Mr. Manvendra Singh Choudhary,PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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13/11/2025

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The second application for suspension of sentence is preferred by appellant - Sunil Kumar Son Of Bholaram in pending appeal filed aggrieved from order of conviction and sentence dated 06.12.2024 in Sessions Case No.56/2019 passed by learned Special Judge (POCSO Act Cases) No.1, Sikar whereby appellant was convicted for offence under Sections 363, 366 IPC and 3/4 of POCSO Act and sentenced accordingly.

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Learned counsel for the appellant while relying upon grounds of appeal submitted that without observing principle of law learned trial court has arrived at a conclusion of conviction. He further submitted that learned trial court has overlooked material contradictions and discrepancies, which goes to root of the matter.

[2025:RJ-JP:45825]

[SOSA-2172/2025]

(2 of 5)

He further submitted that the entire case of prosecution rests on testimony of interested witness and no independent witness was examined to corroborate the story of prosecution.

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Learned counsel for appellant submits that first SOS application was dismissed on 09.04.2025 and appellant has already undergone 3 years 8 months 24 days against maximum sentence of 7 years. He further submits that there is no document about the age of victim but the radiological age as considered by learned trial court indicated that the age is between 14 to 16 years and considering the age difference of 2 years in the estimation of age, the victim may be between 16 to 18 years. He also submitted that victim has not raised any alarm when she was allegedly raped by appellant. He also submits that this is not a case of rape rather it is a case of consent and appellant is falsely implicated by complainant.

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Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record.

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

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The appellant was charged for committing rape on 07.05.2019 at 6.30 p.m. with victim. After filing of charge-sheet the prosecution has examined 22 witnesses including PW-1 victim. The trial court has convicted appellant under Sections 363, 366 and 376 IPC and 3/4 of POCSO Act. The maximum sentence awarded to the appellant is 7 years. While considering first SOS application on 09.04.2025, we have observed as under:-

(3 of 5)

[2025:RJ-JP:45825]

[SOSA-2172/2025]

“4. On the basis of written report submitted by PW-2 (father of victim) on 07.05.2019 about the incident of 06.30 PM on 07.05.2019 FIR No.99/2019 was registered at P.S. Laxmangarh, District Sikar. During investigation, accused-Sunil Kumar and Banwarilal were detained and identification parade was conducted and report was exhibited as Ex.P-6 and Ex.P-7. The statement of victim was recorded under Section 164 Cr.P.C. and same was exhibited as Ex.P-8. Victim was medically examined on 08.05.2019 and a report (Ex.P-4) was prepared. After investigation, a charge-sheet has been filed against the Sunil Kumar and Banwarilal. Both the accused have faced charges under Sections 363, 376D IPC and 376/511 as framed by the Trial Court. After recording the statement of 22 witnesses and exhibition of 38 documents by prosecution, the accused were examined under Section 313 Cr.P.C. Two defence witnesses were submitted and three documents were exhibited. Learned Trial Court has acquitted Banwarilal from all the charges, but convicted present applicantaccused Sunil Kumar under Section 363, 366, 376 IPC and 3/4 POCSO Act. 5. A perusal of record clearly indicate that within few hours of the incident, the matter was reported to police. The evidence further suggests that the victim was first raped by present applicant-accused-Sunil Kumar, but when rape was attempted by another accused-Banwarilal, her family members reached the place of incident and she was rescued. Herein this case, the victim has identified present applicant during investigation and further she deposed against the applicant. A perusal of FSL report (Ex.P-34) suggests that

(4 of 5)

[2025:RJ-JP:45825]

[SOSA-2172/2025]

human semen was detected in vaginal swab and smear of victim and the human semen was also detected in “ Salwar ” of victim. Though, mixed male DNA profile was obtained from “ Salwar ” of victim and as per Ex.P-35, the blood sample was not matched with semen stains detected on “ Salwar ” of victim. There was an incomplete male DNA profile in vaginal smear of victim, but no male DNA profile was obtained from vaginal swab of victim.

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Herein this case was determined on the basis of ossification test and radiological age of victim was 14 to 16 years. If we take advantage of ± one year even then victim is less than 18 years, on date of incident.

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Herein this case, the allegations were proved against present applicant and the matter is not a relationship. Rather, it is a case of physical relation after alluring a poor girl, begging on street. This applicant-accused was released on bail during trial in pursuant to order dated 24.01.2022.

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Having considered the fact that the victim was minor and beside testimony of victim, there were other circumstances, which were considered by the Trial Court, in arriving conclusion of conviction, thus, looking to facts of the case, this is not a fit case, wherein, applicant-accused can be released on bail only on the basis that he served more than three years and one month.”

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The material on record indicated that on the basis of ossification test, the age of victim was determined between 14 to 16 years and for clarification about the age of victim, we have considered the statement of PW-3 Dr. Prahlad Rai, who deposed that the age of victim is more than 14 years but less than 16

[2025:RJ-JP:45825]

[SOSA-2172/2025]

(5 of 5)

years. Section 94 of JJ Act provides for variation of one year while determination of age. Herein there is a specific evidence of PW-3 suggesting that the age is less than 16 years. The material indicated that the victim is less than 17 years on date of incident.

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The material on record clearly indicated that victim belongs to very poor strata of the society and she was in fact a beggar. The evidence clearly suggested that she was not only forced but also she was subjected to cruel treatment. The victim belongs to Scheduled Caste Community though appellant was acquitted of the charge under SC/ST (POA) Act. The material on record clearly reflects the rape with victim, therefore in facts of the case, the undergoing sentence of 50 percent is not sufficient to allow SOS application of appellant.

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Having considered the grounds and material available on record, I am of considered view that this is not a fit case to release appellant on completion of 50 percent of the sentence.

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Accordingly, the SOS application preferred by appellant Sunil Kumar is hereby dismissed. Misc. application stands disposed of. 10. List the appeal for hearing in December, 2025.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /91

Sunil Kumar Son of Bholaram v. the State of Rajasthan

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Sunil Kumar Son of Bholaram v. the State of Rajasthan

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