ORDER

1. Heard on I.A. No.5595/2021 an application (third application) for suspension of execution of sentence awarded to the appellant and grant of bail. Earlier applications have been dismissed as withdrawn as under :-

I.A. No. 24822/2017 on 24.10.2018

I.A. No. 14075/2019 on dated 19.2.2020.

2. Vide judgment dated 4.10.2017 in S.T. No. 01/2016 passed by learned 1nd ASJ, Balaghat, Distt.-Balaghat M.P., the appellant has been convicted for the offence punishable under section 363 of IPC and has been sentenced to undergo R.I. for 3 years with a fine of Rs. 2,000/-, section 366 of IPC and sentenced to undergo R.I. for 7 years with a fine of Rs. 2,000/-, section 376(1) of IPC and sentenced to undergo R.I. for 10 years with a fine of Rs. 2,000/- and section 4 of POCSO Act and has been sentenced to undergo R.I. for 7 years with a fine of Rs. 2,000/- with default stipulation in each.

3. As per prosecution case, on dated 29.10.2015, prosecutrix aged 16 years was missing from her house. She was searched but not found. FIR was lodged. Thereafter, prosecutrix was recovered on dated 3.11.2015. It is alleged by the prosecution that appellant-accused took her and committed intercourse with her.

4. Learned counsel for the appellant submits that learned trial Court has committed grave error to convict and sentence to the appellantaccused. Learned trial Court did not appreciate the evidence in perspective way. It is not proved that at the time of incident, prosecutrix was below 18 years. Smt. Ratnaprabha Meshram (PW-3) deposed before the trial Court that the date of birth of prosecutrix in the school admission register is mentioned as 3.8.2000 but he admitted this fact that he has no knowledge what is the source of information of date of birth of prosecutrix. Sandeep Pancheswar (PW-4) did not disclose the date of birth of prosecutrix . So, prosecutrix might be above 18 years at the time of incident. Date of birth certificate of prosecutrix is also available on the record in which her date of birth is mentioned as 5.11.1999. Apart from this, prosecutrix and appellant-accused loved each other. They solemnized marriage with each other and on dated 19.1.2018, prosecutrix delivered a child, whose father is appellant-accused. Prosecutrix PW-1 admitted this fact that she solemnized marriage with appellant-accused at temple. So, it is evident that prosecutrix is the wife of appellant-accused. Apart from this, there are material contradictions and omissions in the evidence of the prosecution witnesses. During trial appellant-accused remained in jail from 5.11.2015 to 24.9.2016 and is in custody since 26.9.2017, so he has served almost substantial jail sentence. This appeal is of year 2017. It is the time of COVID-19 due to which final hearing of this appeal will take time. There is every possibility to succeed in this appeal. There is no likelihood of his absconding and tampering with the evidence. Under the circumstances, if the execution of sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail to the present appellant-accused.

5. On the other hand, learned Panel Lawyer for the respondent-State opposes the submission of appellant's counsel and prays for rejection of application.

6. Heard and perused the record.

7. Having considered the arguments advanced by learned counsel for the parties and evidence of the case it appears that the age of prosecutrix is disputed, she herself admitted this fact that prosecutrix and appellant-accused solemnized marriage with each other, appellant-accused has filed the birth certificate dated 19.1.2018 of the child delivered by the prosecutrix from which it appears that the appellant is the father of that child, appellant-accused is in custody since 26.9.2017 and during trial he remained in jail from 5.11.2015 to 24.9.2016, so he has served almost substantial jail sentence, this appeal is of year 2017, it is the time of pa