IMPORTANT POINT
Explanation offered by prosecution for this delay will have to be tested at stage of final disposal of appeal.

JUDGMENT

Learned Public Prosecutor has chosen not to file reply to this application for suspension of sentences and proposes to argue the matter orally.

2. Heard learned counsel for the applicant and learned Public Prosecutor. Perused the material available on record.

3. The appellant applicant herein stands convicted for the offences under Section 318 I.P.C. and Section 5(c)/6 of POCSO Act vide judgment dated 15.09.2016 passed by the learned Special Judge, (POCSO Act Cases), Bhilwara in Sessions Case No.30/2014. Shri Farzand Ali and Shri Naman Mohnot learned counsel representing the appellant applicant vehemently and fervently contended that the entire case of the prosecution is false and fabricated. They urged that the F.I.R. (Ex.P/1) was lodged after a significant delay. The victim Mst.P was allegedly subjected to forcible sexual assault by the appellant in the Shishu Gyan School, Asind in the month of September 2013 due to which, she conceived. The girl delivered an aborted foetus on 14.12.2013. They urged that the fact regarding the girl having been allegedly subjected to forcible sexual intercourse by the appellant was admittedly divulged by her to her parents on 14.12.2013 itself but still, the F.I.R. was lodged as late as on 17.12.2013 which clearly creates a grave doubt on the truthfulness of the prosecution story. They referred to the FSL (DNA examination) report (Ex.P18) as per which, DNA profile could not be obtained from the femur bone of the foetus and thus, no conclusion could be drawn regarding its matching with the blood (DNA) sample of the accused appellant herein. Shri Farzand Ali further drew the Court s attention to the statement of the Medical officer Dr.Rajkumar P.W.15 who categorically stated that the foetus which he examined (the one aborted by the victim) was 16 weeks old. Learned defence counsel drew the Court s attention to the cross-examination conducted from the Medial Officer wherein, it was elicited that the foetus was weighing 500 gms. which can only be gained when foetus is of 4-5 months. Shri Farzand Ali thus urged that ex-facie, the story set up in the statement of the victim P.W.1 Mst.P that the accused appellant subjected her to forcible sexual intercourse in the month of September 2013 is belied by positive medical evidence of Dr.Rajkumar, who stated that the foetus was 4 months old and thus, the concievement by the victim could not be of September 2013. He thus urged that there are unsurmountable loopholes in the prosecution story which clearly indicate that the entire case is false and fabricated as against the appellant. As per Shri Farzand Ali, the victim conceived from someone else and the appellant was implicated for oblique reasons. He thus urged that the appellant who is in custody for the last more than 5 years, deserves to be enlarged on bail during pendency of the appeal.

4. Learned Public Prosecutor, on the other hand, has vehemently and fervently opposed the submissions advanced by the defence counsel and urged that the minor victim had no cause to falsely implicate the appellant in this case for the reprehensible offence of forcible sexual assault. He further urged that minor discrepancies regarding the age of the foetus and the nonmatching of the DNA profile thereof with the sample of the accused, cannot affect the prosecution case so adversely so as to discard the same in entirety. He submitted that the accused appellant has been held guilty of the reprehensible act of committing rape upon a minor child who was studying in accused appellant s mother s school and as such, he does not deserve indulgence of bail.

5. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the entire record. From the contentions noted hereinabove and the admitted material available on record, the following undisputed conclusions emerge.

6. That the victim categorically stated in her evidence recorded as P.W.1 that the accused subjected her to forci