SOSA/918/2026 of GYARSIRAM S/O RATANLAL Vs STATE OF RAJASTHAN on 20 August 2026

Order

20/08/2026

1. This second SOS application is preferred by applicant- accused Gyarsiram S/o Ratanlal in pending appeal filed aggrieved from judgment of conviction and sentence dated 21.11.2019 in Sessions Case No.95/2018 passed by learned Special Judge (POCSO Act, Cases) No.1, Jhalawar, whereby this applicant-accused was convicted under Section 363, 366A, 373(2)(N) IPC and Section 5(L)/6 POCSO Act.

2. Learned counsel for the petitioner submits that first SOS application of present petitioner was dismissed on 16-5-2025 and the petitioner accused is in custody and the period of custody is more than three years. He also submitted that the petitioner accused was on bail during trial and the appeal of present petitioner has not been considered on merits. He also submitted that the victim and present petitioner both

(2 of 5) [SOSA-918/2026] were working together and due to an affair between them they decided to marry with each other and at the instance of victim the petitioner has eloped with victim. He also submitted that there is no sign of use of any force and there is no forcible rape by petitioner. He also submitted that the evidence clearly suggests that the petitioner-victim is a consenting party to the incident and present petitioner has no role in enticing victim for elopement.

3. Aforesaid contentions were opposed by learned Public Prosecutor.

4. Heard learned counsel for applicant and learned Public Prosecutor. Perused the record.

5. First SOS application of present petitioner was considered on 16-5-2025 wherein we have considered following arguments of learned counsel for the petitioner: "Learned counsel for applicant submits that applicant is an innocent person and he was falsely implicated by complainant. He further submits that this applicant has awarded sentence of 10 years and he has already served more than one year and four months. He also submits that the applicant-accused was on bail during trial and disposal of appeal will take its own time. He further referred the facts of the case and submitted that initially, the report was registered under Sections 363 and 366 IPC and involvement of 4 persons were alleged by complainant. He further submitted that after recovery, the statement of victim was recorded under Section 164 Cr.P.C., wherein she did not alleged rape by applicant-accused. He further submitted that it is a case of consent and admitted by victim in her statement. He further submitted that the age of victim is determined on the basis of evidence of PW-7 (teacher), presuming the DoB of victim as 30th, April, 2000, but there were 3 different versions of

(3 of 5) [SOSA-918/2026] prosecution and learned Trial Court has ignored other 2 versions, which favours the applicant-accused. He also submitted that the admission of PW-3 (father of victim) clearly shows that the DoB of victim was recorded as 01.01.1998 in her Aadhar Card Ex.D-1, and accordingly, the age of victim was around 19-20 years, on date of incident. He further referred cross- examination of victim (PW-2) and submitted that her admission indicate that she traveled in public place without any hue and cry and voluntarily stayed with present applicant. He further submitted that no injuries were found on body in particular genital of victim and there is no other evidence to establish that present applicant has committed forcible rape with victim."

6. After considering the said arguments, the second SOS application was dismissed by this Court with following observations: "5. On basis of report (Ex.P-10) submitted by father of victim, FIR No.217/2015 was registered at P.S. Ghotoli, District Jhalawar on 18.07.2015. The victim was recovered on 05.04.2016. The statement of victim was recorded under Sections 161 and 164 Cr.P.C. and medical of victim was conducted. After investigation, a charge-sheet has been filed against the applicant-accused. After framing the charge, the prosecution has examined 11 witnesses and exhibited 22 documents. The applicant-accused was examined under Section 313 Cr.PC. and he has not submitted any defence evidence, but one document was exhibited by him. The applicant-accused was convicted under Sections 363, 366A, 376 (2)(N) IPC and Section 5(L)/6 POCSO Act. The maximum sentence awarded to present applicant-accused is 10 years.

6. The applicant-accused released on bail in pursuant to order dated 26.05.2016 in bail application No.318/2016 passed by learned Special Judge (POCSO Act, Cases) Jhalawar on 26.05.2016. After judgment of conviction and sentence dated 21.11.2019,

this

applicant-accused

(4 of 5) [SOSA-918/2026] remained absent, and a warrant of arrest, issued against him. On 29.03.2024, applicant-accused was arrested by police and sent to custody on 30.03.2024 to serve the sentence. Thus, this applicant remained absconder for 5 years after pronouncement of judgment.

7. PW-7 Shanker Lal was examined by prosecution to show that the DoB of victim was 30.04.2000. PW-7 is a Head Master of Government School and record pertains to a Government School. The admission of PW-7 and also PW-3 (father of victim) clearly indicate that PW-3 is illiterate. The evidence of PW-7 is found to be in accordance with Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. The DoB in Aadhar Card Ex.P-1 is not a proof of DoB, therefore, the age of victim may be determined on basis of evidence of PW-7 and record submitted by him.

8. Report Ex.P-10 indicate that victim has left her home on 18.07.2018 though report was registered on 25.07.2018. Thus, on 18.07.2015, the victim was less than 16 years of age. Till registration of police case, the victim was not recovered.

9. After recovery, the victim was examined under Section 164 Cr.P.C., wherein she admitted a friendship with applicant-accused though later, she came to know that applicant-accused is a married person. The admission states that victim has solemnized marriage with applicant-accused. Victim was medically examined by PW-1 Dr. Dwarka Lal Meena and no injuries were found on body or on genital of victim and he exhibited report Ex.P-1 and Ex.P-2. The father of victim was examined as PW-3 and we have considered his cross-examination, about elopement of victim.

10. The victim was examined as PW-2 and she has alleged a forcible rape by applicant-accused at different places on multiple occasions. In cross-examination, she denied voluntarily eloping with applicant-accused. Herein, the victim was less than 16 years, so her express or implied consent is immaterial.

11. Having considered the totality of facts and circumstances of the case and

(5 of 5) [SOSA-918/2026] also the fact that this applicant-accused was remained absconded for more than 5 years, I am of considered view that it is not a fit case, wherein the applicant- accused be granted bail, where the age of victim is less than 16 years."

7. The material on record clearly indicates that the age of victim was less than 16 years and the present petitioner has absconded for more than five years, which has further delayed the trial. Earlier on the merits, SOS application has been considered by this Court wherein we are not inclined to reconsider the merits again. The applicant-petitioner was awarded maximum sentence of ten years and till date he has served more than two years and ten months, therefore, period is not even 50% to consider bail to the petitioner.

8. Having considered the brutality of facts and circumstances of the case and also the period of custody, I am not inclined to allow SOS application of present petitioner.

9. Hence, the second SOS applicant preferred by present petitioner- Gyarsiram S/o Ratanlal, is hereby dismissed. (ASHOK KUMAR JAIN),J 28/Chetna