The court's discretion in allowing the suspension of sentence was influenced by the lack of holistic consideration of evidence regarding the prosecutrix's age.

1. - Heard the counsel for the accused-appellant and the learned Public Prosecutor.

2. Mr. Eliyas Ali, appearing for the accused-appellant has submitted that without any primary evidence such as a birth certificate with regard to the age of the prosecutrix, the prosecutrix has been taken to be a minor by the learned trial court of less than 16 years of age. He submits that in the absence of any primary evidence of probative worth with regard to the age of the prosecutrix, it was incumbent for the investigation to have been got conducted the requisite medical tests such as an ossification test, dental examination and physical examination of prosecutrix to determine or assess her age. This was not done. Hence the central question of the age of the prosecutrix was not lawfully addressed. Counsel points out that in her statement under Section 164 Cr.P.C., the prosecutrix admitted of having consensual sex with the accused-appellant.

3. On the issue of age, counsel submitted that Dr. Manoj Jain (PW-5) has stated in his evidence before the trial court that the prosecutrix had 28 teeth i.e. all teeth except for the third molars and the wisdom teeth. Counsel submits that Modi's Textbook of Medical Jurisprudence and Toxicology records that the third molars erupt between the age of 17 and 26 years and hence second morals indicate an age of over 16 years. Counsel further submits that in the medical report of the prosecutrix, it was recorded that she had black pubic hair. Again referring to Modi's Textbook of Medical Jurisprudence and Toxicology, it is submitted that dark pubic hair occur around the age of 16 and 17 years. Counsel has also drawn the attention of this Court to the statement of Murli Manohar (DW-1), who has stated before the trial court that he was earlier married to the prosecutrix at community marriage of "Meenas" and at the relevant time, he was 21 years of age and the prosecutrix was 18 years of age. It is submitted that Nand Lal (PW-6), the maternal grandfather of the prosecutrix, in his evidence before the trial court has stated that for permitting the continuation of the relationship between the prosecutrix and the accused-appellant, a demand of Rs. 3,00,000/- was made by the family of the prosecutrix and on the refusal to pay the said amount, the criminal case was initiated against the accused-appellant. Counsel submits that the aforesaid aspects of the matter have not been considered by the trial court and the evidence with regard to the age of the prosecutrix not addressed holistically, but only in isolation with reference to the oral assertion of the age before the trial court without anything more. It is submitted that in this view of the matter, the accused-appellant, on bail during trial, should be granted the indulgence of suspension of sentence under the judgment dated 28.04.2012, passed by the trial court.

4. Mr. Peeyush Kumar, the learned Public Prosecutor, has opposed the bail application.

5. After considering the submissions of the counsel for the parties, but without expressing any opinion on merits or demerits of the appeal, I would exercise the discretion of this Court in the facts of the case by allowing this application for suspension of sentence.

6. Consequently, the application for suspension of sentence is allowed. It is directed that sentence of imprisonment of the accused-appellant namely Shaitan Singh S/o Shri Shankar Lal shall remain suspended during pendency of the appeal and he shall be released on bail provided, he furnishes a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousands) with one surety of the like amount to the satisfaction of the trial court to appear before this Court on 11.03.2013 and as and when he is called upon to do so.

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