The age of the victim and lack of concrete evidence may lead to suspension of sentence under specific circumstances.

CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR ORAL ORDER

8 20-01-2026 Heard learned counsel for the appellant, learned APP for the State and learned counsel for the Informant.

2. The informant/victim has not been impleaded as Respondent No. 2 in this appeal. However, Mr. Mani Shankar Mani appeared suo motu on her behalf and his vakalatnama is on record.

3. Learned counsel for the appellant is seeking permission to implead the informant/victim as Respondent No.

2 in course of day.

4. Permission is accorded.

5. At this stage, Learned counsel for the appellant is pressing the prayer, as made in the memo of appeal, for suspending the execution of sentence and release of the appellant on bail during pendency of the appeal submitting that the impugned judgment of conviction and order of sentence are not sustainable in the eye of law. He further submits that the appellant has been convicted under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act and he has been sentenced to R.I. for 10 years and fine of Rs. 15,000/- and in case of default of payment of fine, he was directed to undergo further simple imprisonment for six months.

6. Learned counsel for the appellant further submits that the prosecution has badly failed to prove its case against the appellant. He further submits that the alleged victim is illiterate and her age has been determined on the basis of ossification test, as per which has she has been aged about 16-17 years. However, during the cross-examination, the doctor concerned has clearly deposed that her age may be 18-19 years.

7. He also submits that even otherwise it is settled law that there is always margin of error up to two years and benefit of doubt is always given to the accused. As such, the age of the victim comes to 18-19 years and hence, POCSO Act does not get attracted in the alleged facts and circumstances.

8. He further submits that as per the medical evidence, there is no sign of any rape and hymen was found old ruptured. He also submits that the clothes, which were worn by the alleged victim at the time of occurrence, has not been brought on record giving rise to inference against the prosecution.

9. He also submits that as a matter of fact, there was love affairs between the appellant and the alleged victim/Respondent No. 2 and she wanted to marry him, but on account of family pressure, he could not marry her and hence, this false case has been filed. Now, there is possibility of marriage.

10. He also submits that the appellant has already undergone imprisonment for about three years and two months, out of total 10 years of rigorous imprisonment as awarded against him.

11. However, Ld. APP for the State and learned counsel for the informant submit that there was love affairs between the appellant and the alleged victim/Respondent No. 2. However, on promise of marriage, the appellant established physical relationship with her and thereafter, he refused to marry.

12. Considering the aforesaid facts and circumstances and the period of custody already served by the appellant i.e. for about three years and two months imprisonment, out of total 10 years of rigorous imprisonment as awarded against him and there being no likelihood of hearing of the appeal in near future in view of huge pendency of older appeals, the execution of sentence is suspended and the appellant is directed to be released on bail during pendency of the appeal in connection with POCSO G.R. Case No. 49 of 2016, arising out of Andhrathadhi P.S. Case No. 106 of 2016, on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Additional District and Sessions Judge – VII – cum – Special Judge, POCSO, Madhubani/concerned Court below.

13. Office is directed to list this case for hearing in due cou