1. The instant interlocutory application has been filed under S.430(1) of the BNSS, 2023 for keeping the sentence in abeyance in connection with the judgment of conviction dated 01.12.2022 and order of sentence dated 02.12.2022 passed by the learned Special Judge (POCSO) Act, Dhanbad in connection with Spl. (POSCO) Case No.153 of 2021 arising out of Jorapokhar PS Case No.196 of 2021, whereby and whereunder, the appellant has been convicted under S.376 of the IPC and under S.6 of POCSO Act and sentenced to undergo RI for 25 years with fine of Rs.5,000/- for the offence under S.6 of POCSO Act and in default of payment of fine, further directed to undergo additional imprisonment of one month.

2. This is the second attempt made by the appellant for renewing his prayer for suspension of sentence.

3. It has been contended on behalf of the applicant that it is a case where the physical relationship was established with the consent of both the parties.

4. The submission has been made that the victim is aged about 17½ years at the time of occurrence. The argument has, therefore, advanced on behalf of the appellant that the victim was well aware with all consequences of establishing physical relationship and, hence, the ingredient as referred in S.6 of POCSO Act or any other provision thereof will not be attracted.

5. The learned counsel, based upon the aforesaid ground, has submitted that it is a fit case for suspension of sentence.

6. While, on the other hand, Mr. B.N. Ojha, learned A.P.P. appearing for the respondent - State of Jharkhand has vehemently opposed the prayer for suspension of sentence.

7. It has been contended by the learned A.P.P. that earlier prayer for suspension of sentence of the appellant has already been taken into consideration by this Court and rejected the same vide order dated 29.03.2023 passed in I.A No.1272 of 2023 and again the appellant by filing the present interlocutory application being I.A No.7750 of 2025 has renewed his prayer for suspension of sentence.

8. It has been contended that so far as the argument that the age of the victim of 17 1/2 years can be a ground for suspension of sentence is concerned, the law does not permit. The submission has been made by referring to the definition of "child" within the meaning of POCSO Act under S.2(1)(d), "child" means any person below the age of 18 years.

9. It has further been contended that in the matter of POCSO there is no meaning of any consent, reason being that the POCSO Act is the Gender - Neutral Act and is meant only to take cases of child etc. The fact of sexual assault as per the submission made by the learned counsel for the applicant is admitted one, and, hence, it is not a fit case for suspension of sentence.

10. We have heard the learned counsel for the parties and gone across the findings recorded by the learned trial Court in the impugned judgment as well as the testimony available in the lower Court records, as also the materials exhibit as available therein.

11. The victim is child within the meaning of S.2(1)(d) of the POCSO Act, 2012. She was subjected to sexual assault at the age of 17 years approximately. However, the learned counsel appearing for the appellant has made a submission that the victim is aged about 17 1/2 years old at the time of occurrence, but as it appears from the record that the age of the victim as has been assessed by the learned trial Court was 17 years old at the time of occurrence.

12. We have also gone through the memo of appeal and found that the issue of age has not been challenged by the appellant and, as such, we have gone by the age of the victim as assessed by the learned trial Court at para - 31 of the impugned judgment to be of the 17 years.

13. So far as the contention advanced on behalf of the appellant that the victim was having 17 1/2 years of the age at the time of occurrence is concerned, as we are sitting under the appellate jurisdiction and, as such, we are duty bound to go by the statutory com