VIJAY KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant application for suspension of sentence is preferred in pending appeal filed aggrieved from order of conviction and sentence dtd. 21/3/2024 in Session case No. 7-2022 passed by learned Special Judge (POCSO Act Cases) No. 2, Jhalawar whereby appellant was convicted for offence under Sec. 363, 376 IPC and 3/4(1) of POCSO Act.

(2.) Learned Counsel for the appellant submitted that Ex.P-1 report was submitted by prosecutrix on 29/11/2021 alleging rape by present appellant in the month of September, 2021 but when her statement was recorded as PW-1 before the Trial Court then she disclosed about rape committed one month before registration of FIR i.e. month of October, 2021. He further submitted that this is a false and fabricated case prepared against appellant only due to dispute between family of victim and present appellant and this fact is supported by Ex.D2 to Ex.D-6. He further referred cross-examination off PW-1 and submitted that in her cross-examination, victim has clearly admitted that in Aadhar Card her date of birth was recorded as 1/1/2003 but later on she made correction in Aadhar Card and changed her dated of birth as 25/2/2005. He also submitted that as per PW-1, the incident is of October, 2021 and she disclosed the incident to her parents in month of November, 2021. He further referred cross- examination of PW-1 and submitted that she is eldest daughter of her parents and she is having a consensual relationship with present appellant and accepted mobile phone gifted by appellant. He further referred the statement of PW-2 Mother of victim and PW-3 Father of victim and submitted that both the parents have admitted that victim and submitted that both the parents have admitted that victim born to them after two years of marriage. He further referred cross- examination of PW-2 and submitted that she admitted that victim was adult on date of incident. He also referred FSL report and process of collection of sample and submitted that as per PW-1, she has washed her undergarments with surf. He submitted that it is impossible that after washing undergarments with surf for continuously two months, any residue to record presence of semen is available on undergarment. he also pointed out that the process of collection of sample is defective and FSL report is just an eye-wash. He also submitted that IO was not examined in the matter to clarify the doubts raised by the defence. At last, he submitted that this appellant was on bail during trial and he is entitled to be released on bail in the instant case.

(3.) Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. He submitted that complainant was informed about filing of present petition.