The court refused to consider the victim's consent due to the established age of the victim and the applicant's previous offenses under the POCSO Act.

ORDER :

1. By way of preferring this application under Section 389 (1) of the Cr.P.C. applicant has prayed to suspend the sentence imposed upon him by way of judgment and order dated 16.06.2021 passed by learned Special Judge, POCSO at Jetpur, District Amreli in POCSO Case No. 23 of 2019 during the pendency of the criminal appeal.

2. Heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State.

3. Referring the deposition of the victim, it is submitted by learned advocate appearing for the applicant that applicant was married in a temple with the victim herself and consensual relationship was developed with her. That there was no objection raised by the victim of such relationship and it was voluntarily consented by the victim. Referring the deposition of Talati-cum-Mantri, it is submitted that birth date of the victim was doubtful. That name of the victim was recorded in the register later on, and therefore, the victim was more than 18 years at the time of committing the offence. Learned advocate appearing for the applicant has referred the deposition of PW-6 Dr. Divyesh Manubhai Bhaliya and submitted that clear history was given by the victim that with the consent, such relationship was developed since last one year. It is further submitted that in a history given by the victim, marriage was solemnized in a temple. That criminal appeal preferred by the applicant is admitted by this Court and it would take long time for final disposal, and therefore, he has requested to allow present application. In support of his submissions, learned advocate appearing for the applicant has relied upon the judgment in the case of Rohit Sukumar Sukate vs. State of Maharashtra and Another delivered in Criminal Bail Application No. 127 of 2022 by Hon’ble High Court of Judicature at Bombay.

4. Opposing the submissions made by learned advocate appearing for the applicant, learned APP appearing for the respondent-State has submitted that applicant is aged 40 years old. Referring the final order passed by the court, it is submitted that previously also, two criminal cases under the POCSO Act were registered against the present applicant. That applicant is habitual of committing such type of offences. That this is fifth incident, wherein victim was committed rape by the present applicant. It is further submitted that consent, if any, given by the victim cannot be considered by the Court, which is rightly refused by the trial court after recording the evidence of the prosecution. That prima facie offence is clearly established by the prosecution by examining material witnesses before the trial court, admittedly, the victim was minor at the time of committing the offence. Hence, it is requested by learned APP appearing for the respondent-State to dismiss the present application.

5. Having heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State and perused documents produced on record, it appears from the record that at the time of final order passed by the court below convicting present applicant, it was brought to the notice of the court that age of the applicant was 40 years and victim was around 17 years and 8 months at the time of committing the offence. It was further brought to the notice of the court that two offences were registered against the present applicant under the POCSO Act previous in time. It further appears from the record that this was the fifth victim in a offence committed by the present applicant of such a nature. From the record, it appears that victim was minor i.e. below 18 years as per the documents produced on record.

6. This Court has also considered the deposition of victim, wherein she has admittedly said that it was her consent and marriage was solemnized any temple, and thereafter, physical relationship was made by the present applicant.

7. It further appears that statement under Section 164 of the Code of Criminal Procedure was also record