Prima facie evaluation of evidence and statements of the prosecutrix supported the appellant's claim of consent, leading to the grant of suspension of sentence.

JUDGMENT

1. Heard on IA. No.1062/2023, which is first application under Section 389 (1) of Cr.P.C. seeking suspension of sentence and grant of bail moved on behalf of sole appellant.

2. Appellant stands convicted under Section 363 of IPC and sentenced to undergo R.I. for 1 Year with a fine of Rs.500/-, under Section 366 of IPC and sentenced to undergo R.I. for 1 Year with a fine of Rs.500/-, under Section 376(2)(N) of IPC and sentenced to undergo R.I. for 15 Years with a fine of Rs.1,000/-, under Section 5(L)/6 of POCSO and sentenced to undergo R.I. for 15 Years with a fine of Rs.1,000/-, under Section 5(J)(ii)/6 of POCSO and sentenced to undergo R.I. for 15 Years with a fine of Rs.1,000/-, with default stipulations vide judgment of conviction and order of sentence dated 20.07.2022 passed by the Special Judge (POCSO Act) Guna, District Guna in Special Case No.149/2019.

3. The appellant so far as has undergone jail sentence since 26.12.2019.

4. As per prosecution story, a missing report was filed on 22.9.2018 inter alia stating that the appellant is alleged to have manipulated the prosecutrix and eloped with her. The missing corpus of prosecutrix was recovered on 25.12.2019 and the appellant was arrested on 26.12.2019. Statement of prosecutrix under Section 161 of Cr.P.C. was recorded on 22.9.2018 and under Section 164 of Cr.P.C. on 26.12.2019. In both the statements, she has not supported the story of prosecution and claimed that she had gone with the appellant on her own volition and cohabited the marriage. Her pregnancy was of nine months. In the Court statement also, the prosecutrix (PW-4) has not supported the story of the prosecution. Upon completion of investigation, challan was filed. The case was committed to the Sessions Court for trial. The Sessions Court, upon critical evaluation of the evidence available on record and recording of statements, convicted and sentenced the present appellant, as referred above.

5. Learned counsel for appellant submits that as regards age of the prosecutrix though in the school certificate, her date of birth is recorded as 25.5.2002 (Ex.P/4) but in para 3 of cross-examination of her father (PW-1), it is stated that he had solemnized marriage in the year 1980 and after two years, her daughter Rabina was born and after five years, son Dharmendra was born and thereafter five years, the present prosecutrix was born i.e. in the year 1992. As such, there is a stark variation in the school certificate as well as the natural date of birth, as per statement of the father of the prosecutrix.

6. Learned counsel for the appellant further submits that regard being had to testimony of prosecutrix in the Court is well corroborated with her statements recorded under Sections 161 and 164 of Cr.P.C. respectively. It is a case of consent of a major lady who had gone with the appellant on her own volition. No case is made out either that of rape or of the offence in which he has been convicted and sentenced. The appellant has already suffered incarceration from 26.12.2019 with no criminal antecedents. Even otherwise, the prosecutrix is already married and living happy married life. With the aforesaid submissions, learned counsel for appellant prays for benefit of suspension of sentence and grant of bail to the sole appellant.

7. Per contra, Shri Nirankari, learned Public Prosecutor while supporting the judgment impugned submits that no exception, therefore, can be taken in the matter of suspension of sentence. He submits that upon recovery of the prosecutrix, her samples were taken and DNA was found positive. As such, it is a case of sexual abuse of a minor girl whose date of birth as per school certificate is 25.5.2002. The Sessions Court has rightly evaluated the evidence on record with flaw-less findings, convicted the appellant and sentenced him as aforesaid. Hence, no exception can be taken in the matter of suspension of sentence.

8. Upon hearing learned counsel for the parties, though, this Court refrains fr