IMPORTANT POINT
The court suspended the sentence of the accused-applicant due to doubts regarding the prosecution's evidence and the significant time already served.

ORDER :

This suspension of sentence application has been filed by the accused-applicant along with the appeal.

2. Learned counsel for the accused-applicant submits that the accused-applicant has been convicted for the offences under Sections 366, 376D & 342 of Indian Penal Code, 1860 and Section 5/6 of the Protection of Children From the Sexual Offences Act, 2012.

3. Learned counsel for the accused-applicant has annexed the certificate under Rule 311 (3) of the Rajasthan High Court Rules to the effect that the applicant is confined in Central Jail, Bikaner. He further submits that the applicant has been falsely implicated in this matter and he has already served the sentence for a period of more than seven years. He further submits the sentence of similarly situated co-accused persons namely Babita @ Babli and Vikram Singh has already been suspended by the Co-ordinate Bench of this Court vide order dated 07.02.2022 in D.B. Criminal Misc. Suspension of Sentence Application No.473/2019 in D.B. Criminal Appeal No.399/2018, which reads as under:-

"Heard on application for suspension of sentence of the appellants.

Learned counsel for the appellants would argue that the prosecution has utterly failed to prove its case beyond reasonable doubt. Learned counsel for the appellants would contend that so far as the age of the prosecutrix is concerned, father of the prosecutrix, P.W.3 admits that the age was got recorded in the school only on estimation and not on the basis of any certificate or any other clinching evidence regarding age of the prosecutrix. Recording of age by P.W.7, teacher is stated to be on the basis of the declaration made by the mother of the prosecutrix, who has not been examined by the prosecution during trial. It is further argued that thus, the age of the prosecutrix is only on some estimation and there is no evidence in the form of ossification test laid by the prosecution. Therefore, it is doubtful whether on the date of incident, the prosecutrix was minor or not.

The other limb of submission of learned counsel for the appellants is that the evidence of the prosecutrix, P.W.2 itself shows that the prosecutrix herself had gone along with the accused in a vehicle and thereafter, she was taken to another destination and next day, she stated to have come back, but F.I.R. was lodged after about a week and there is no explanation regarding that delay. In addition, it is submitted that evidence on record led by the prosecution also suggests existence of animosity. Appellants have undergone almost four years of jail sentence by now and, therefore, they may be granted bail, as the appeal has not been heard on merits.

On the other hand, learned State Counsel would submit that the doubts, which have been expressed on the evidence of the prosecution, are not of such nature as to altogether disbelieve an otherwise reliable testimony of the prosecutrix, who has clearly stated that after she was taken in a vehicle, made to stay overnight and then against her wishes, she was subjected to sexual intercourse. According to State Counsel, medical evidence on record, which included examination on the prosecutrix, itself shows that she was habitual to sexual intercourse. Learned State Counsel would submit that the prosecutrix on the date of commission of offence was less than 18 years of age and, therefore, conviction has been ordered.

Having taken into consideration the submissions made by learned counsel for the parties, particularly, taking into consideration nature of evidence to prove the age of the prosecutrix as also the evidence of the prosecutrix regarding she having gone along with the accused, having stayed overnight and that F.I.R. was lodged after about seven days of the incident and that there is no evidence of ossification test led by the prosecution and according to father of the prosecutrix, P.W.3, the age was disclosed only on some estimation and considering that the appellants have undergone almost four years of jail se