ORDER :

Farjand Ali, J.

The instant application for suspension of sentence has been moved on behalf of the applicant-appellant in the matter of judgement dated 21.11.2022 passed by learned Special Judge, Special Court, POCSO Act, 2012 and Commission for the Protection of Child Right Act, 2005 No.2, Sriganganagar in Session Case No.74/2021 whereby he was convicted and sentenced to suffer maximum punishment of 10 years rigorous imprisonment along with fine of Rs.50,000/- and in default of payment of fine to undergo 1 year additional rigorous imprisonment under Section 3 76(2)(I) of IPC and lesser punishment for the other offences under Sections 3 63 & 366 of IPC and 3/4 of POCSO Act, 2012.

2. Learned counsel for the applicant-appellant vehemently and fervently contended that from the bare perusal of the statement of victim recorded during the investigation under Section 164 Cr.P.C and then in the trial manifestly make it clear that she was a consenting party, she eloped with the appellant at her own free will and volition without their being any compulsion or coercion. Learned counsel drew the attention of this court recorded under Section 161 Cr.P.C. which was tendered in evidence and marked as Exhibit D-1 wherein she clearly mentioned that she and the appellant studied in the same school and were in same class, they were friends and the fact of their intimacy had come to notice of their parents also. Both the victim and the appellant had requested to their parents to get solemnise their marriage but they were not agreeable because both belongs to the different caste. She further stated that she went to Ramdevra along with the appellant where the accused appellant was apprehended by the police. When she was examined in the trial as P.W.5, a perusal of which does not reflects that she was ever put under duress to join the company of the appellant rather it is vividly appearing that she went with the appellant as per her own accord. As far as question of age of the victim is concerned, learned counsel submits that the veracity of document Exhibits P.18 & P.19 is highly questionable. As per the fact, when the girl was brought to the school by her mother and the admission form was filled no supportive document even birth certificate from Statistics Department, Municipal Corporation or any Hospital record or janam kundli was attached with the admission form. The thumb impression appended on Exhibits P.9/17 makes it manifestly clear that she was an illiterate lady. She was examined in the trial as P.W.5 wherein she candidly admits that when her marriage took place she did not know and she shown her age to be 52 years at one place and 45 years at another place. She begotten 5 children and as per her; she gave birth to her first child after 9-10 months of her marriage. He submits that if her testimony is scrutinised, it will reveal that the victim was not below the age of 18 years and thus, the question is still open to moot that whether the victim would fall under the definition of child age envisaged under POCSO Act.

3. Learned counsel for the appellant further contended that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. Learned counsel for the applicant-appellant also submits that hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

4. Per contra, learned Public Prosecutor as well as learned counsel for the respondent - complainant has vehemently o