IMPORTANT POINT
The court suspended the sentence based on the victim's age and circumstances, allowing the appellant to appeal the conviction.

ORDER :

1. Heard learned counsel for the applicant-appellant, learned State counsel and counsel for the complainant on the application for suspension of execution of sentence.

2. The applicant-appellant herein has been convicted for the offences punishable under Section 363, 366 & 376(3) of IPC and Section 5(L)/6 of Protection of Children from Sexual Offence Act, 2012 vide judgment dated 16.08.2023 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012 & Protection of Children Rights Commission Act, 2005, Karauli (Raj.) in Sessions Case No. 81/2022 (CIS No. 81/2022) and has been sentenced to maximum punishment of twenty years.

3. Learned counsel for the appellant-applicant submits that appellant-applicant has wrongly been convicted by the learned trial Court. Counsel submits that learned trial Court has failed to appreciate the evidence available on record in correct perspective. Counsel submits that it is also admitted case that after giving sleeping pills to the family members in the food, she left her parental house with her own will with the appellant. Counsel submits that at the time of alleged incident, victim was fully grown up girl which is indicating from medical examination wherein her height has been recorded 164 cm and weight was 50 kg. Counsel submits that at the time of alleged incident, she was student of 11th standard and was in the age of discretion, sensibleness and was able to understand the consequences of her act. Counsel submits that age of victim in her school record is not conclusive proof as at the time of school admission no supporting documents was produced and entry of the age was made on the basis of estimation/speculation. Counsel submits that at the time of alleged incident, appellant was also young boy of 19 years. Counsel submits that initially, allegation of commission of rape was not only against the appellant but also one person namely Vimal but in investigation, no role of Vimal was found by the investigating agency, therefore, charge-sheet was filed only against the appellant. Counsel submits that mere presence of male DNA on the undergarments of the victim is not enough to establish the guilt of the appellant as sampling, preservation and deposition of the articles in the FSL is not free from suspicion as same was recovered in the month of June, 2022 but deposited in FSL on 14.07.2022. Counsel submits that human semen was not detected from vaginal swab and vaginal slide of the victim. Counsel further submits that appellant is in custody since 27.06.2022 and there is no immediate prospect of being heard and disposal of this appeal in near future.

4. Learned State counsel as well as counsel for the complainant vehemently oppose the submissions made by counsel for the appellant. They submit that victim was below 16 years of age at the time of alleged incident.

5. Upon a consideration of the arguments advanced on behalf of the appellant as well as learned State Counsel and counsel for the complainant and having regard to the facts and circumstances as available on the record and especially the fact victim left her parental home after giving sleeping pill to the family members in the food; according to the medical examination, it appears that victim was fully grown-up girl; she was student of 11th standard; appellant-applicant has suffered incarceration of almost 26 months and there is no immediate prospect of being heard and disposal of this appeal in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the applicant-appellant during pendency of the instant appeal.

6. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 & Protection