The victim's admission of consent complicates the prosecution's case under Section 376(2)(n) of the IPC, warranting suspension of the appellant's sentence during appeal.

ORDER :

I.A. No. 385 of 2025

1. The instant interlocutory application has been filed on behalf of sole appellant under Section 430 (1) of BNSS, 2023 for suspension of sentence dated 27.09.2024 passed by the learned Additional Sessions Judge-II, FTC (CAW), Bermo at Tenughat in Sessions Trial No. 467 of 2022 arising out of Chandrapura P.S. Case No. 75 of 2022, whereby and whereunder, the appellant has been found convicted under Section 376(2)(n) of the Indian Penal Code and sentenced to undergo RI for 10 years with fine of Rs. 10,000 and in default of payment of fine he was further directed to undergo RI for six months.

2. It has been contended on behalf of appellant that the appellant has falsely been implicated even though there is no ingredient of Section 376(2)(n) of the Indian Penal Code. It has further been submitted that since the marriage has not been solemnized, therefore, the present case has been instituted, which itself speaks that the prosecution version attracting Section 376 (2)(n) is not available.

3. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that the sentence is fit to be kept in abeyance by allowing the instant Interlocutory Application.

4. While on the other hand, learned APP appearing for the State has opposed the prayer for suspension of sentence. It has been contended by referring to the testimony of P.W. 1, who according to learned counsel has consistently supported the prosecution version. It has also been submitted that the first instance of establishing the physical relationship by the appellant with the victim by committing rape and thereafter the victim compromised on the pretext of assurance of marriage given by the appellant. Hence, it is incorrect on the part of the appellant to take the ground that it is not a case where Section 376(2)(n) is not attracted and as such submission has been made that it is not a fit case for suspension of sentence.

5. We have heard learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned judgment as also the testimony of the witnesses as available in the Lower Court Records.

6. This Court in order to appreciate the argument advanced on behalf of parties has considered the testimony of P.W. 1, the victim, wherefrom it is evident that she herself has admitted that since marriage has not been solemnized by the appellant, therefore, the present case has been instituted. The aforesaid version of the victim does clarify that the victim was also the consenting party in establishing the physical relationship.

7. This Court, considering the aforesaid fact, is of the view that it is case where the appellant has made out a case for suspension of sentence.

8. Therefore, this Court is of the view, the sentence is to be suspended, during pendency of the appeal.

9. Accordingly, the instant Interlocutory Application is allowed.

10. In view thereof, the appellant named above, is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand only) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-II, FTC (CAW), Bermo at Tenughat in Sessions Trial No. 467 of 2022 arising out of Chandrapura P.S. Case No. 75 of 2022.

11. It is made clear that any observation made hereinabove will not prejudice the case of the parties on merit since the appeal is lying pending for its consideration.