Ashok S/O Vishambhar Dayal Vs State of Rajasthan

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[2026:RJ-JP:24653]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc. Suspension Of Sentence Application (Appeal) No. 1860/2025

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URN: SOSA / 3603U / 2025

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Ashok S/o Vishambhar Dayal, Aged About 23 Years, R/o Bheekhahedi, Police Thana Reni, District Alwar (Raj.) (At Present Confined At District Jail, Alwar)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Victim, R/o

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----Respondents

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For Petitioner(s)	: Mr. Mr. Ms. Mr. Mr. Mr.	Kapil Gupta, Adv. with Dharmendra Kumar Anisha Yadv Chitransh Saxena Aval Yadav Tanay Choudhary
For Respondent(s)	: Mr.	Amit Punia, PP
For Respondent No.2	: Ms. Mr. Mr.	Poonam, Adv. with Deepak Acharya Keptain Prajapati

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order

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02/07/2026

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Heard learned counsel for the parties and perused the material available on record as well as judgment of conviction passed by the trial Court.

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The applicant-appellant herein has been convicted for offences punishable under Sections 363, 366, 376(2)(n), 376D, 354D, 323, 341, 506 of IPC and Sections 5(g)/6, 5(l)/6 & 11(iv)/12 of Protection of Children from Sexual Offences Act, 2012 vide judgment dated 14.02.2025 passed by the learned Special

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Judge, Protection of Children from Sexual Offences Act, 2012,

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No.1, Alwar and has been sentenced to maximum punishment of twenty years.

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Learned counsel for the petitioner contends that the trial Court committed a grave error in relying upon the school records of the victim for determining her age. It is submitted that the date of birth recorded in the school records is wholly unreliable. Firstly, in the FIR itself, the victim stated her age to be 19 years. Further, when the Investigating Officer issued a notice under Section 91, the victim clearly stated that, as per the records, her birth year to be 2003. It is further contended that the manner in which the school records were obtained during the course of investigation is not apparent from the record. Moreover, the victim was also subjected to medical examination for age determination, wherein her age was assessed to be between 19 and 21 years. It is argued that if the school records were available, there was no necessity to conduct an ossification test. Learned counsel further submits that according to the school records, separate admission forms were prepared for each class attended by the victim, which is a highly unusual circumstance. Although the school Principal explained that fresh admission forms were obtained because the name of the school had changed, no explanation has been offered as to why a third admission form was required. The Principal has also categorically admitted that there is no attendance record of the victim in the school.

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It is further contended that the victim is a married woman and the mother of a child who was born approximately one year prior to the alleged incident of rape. Learned counsel also submits that both the victim's father and her husband have categorically

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stated that since the victim had already given birth to a child and had been married as a minor, her birth year was entered as the year 2003 in her Aadhaar card. Therefore, in such circumstances, treating the victim as a minor is wholly unjustified.

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It is further argued that although the alleged incident of rape occurred on two occasions, no FIR was lodged on either occasion, and only objections or protests were raised before the accused person. However, when the accused person allegedly committed only an act of molestation on the third occasion, was FIR lodged. This, according to the petitioner, renders the prosecution story doubtful. It is also submitted that the Investigating Officer, during the course of investigation, did not find the allegation of rape against the petitioner to be substantiated and, accordingly, filed the charge-sheet only for the offences punishable under Sections 323 and 341 of IPC.

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Counsel further submits that the husband of the victim in his statement recorded under Section 161 Cr.P.C. specifically deposed that the present appellant did not commit rape with the victim, however, when the said statement was tendered to him during cross-examination, then he showed his ignorance how Police mentioned these facts in his statement, thus, his testimony cannot be relied upon at all.

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Counsel submits that looking to the large pendency of criminal appeal before this Court, there is no immediate prospect of this appeal being heard and disposed of in near future. Counsel further submits that in these circumstances, it is urged that the execution of sentence imposed upon the applicant deserves to be suspended during the pendency of appeal.

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Learned State counsel assisted by learned counsel for the victim vehemently opposes the submissions advanced on behalf of the applicant. They submit that the trial Court has rightly recorded the conviction of the applicant. It is submitted that serious allegations have been levelled against the applicant for the commission of rape with the victim, who, according to the date of birth recorded in the school records, was a minor at the time of the alleged incident.

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Upon a consideration of the arguments advanced on behalf of the parties and having regard to the facts and circumstances as available on the record including judgment passed by learned trial Court, especially considering the testimony of the victim, her husband and Principal as well as the school record and medical examination report of the victim and medical examination report, and further looking to the large pendency of criminal appeal before this Court and there is no immediate prospect of this appeal being heard and disposed of in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the appellant-applicant during pendency of the appeal.

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Accordingly, the application for suspension of sentence filed under Section 430 BNSS are allowed and it is ordered that the sentence passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, No.1, Alwar vide judgment dated 14.02.2025 in Session Case No.35/2024 against the applicant Ashok S/o Vishambhar Dayal shall remain

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suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in the Court on 31.07.2026 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

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

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That if the applicant change the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

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

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The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accusedapplicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial Court. In case the said accused-applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

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(ANIL KUMAR UPMAN),J

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38/Manoj Solanki

Ashok S/O Vishambhar Dayal v. State of Rajasthan

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Ashok S/O Vishambhar Dayal v. State of Rajasthan

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