[2025:RJ-JP:428] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc. Suspension of Sentence Application No. 1318/2023 In S.B. Criminal Appeal No.2469/2023 Dilkhush S/o Ranglal, Aged About 20 Years, R/o Haripura Kuchalwada Khurd Police Station Hanuman Nagar District Bhilwara Presently House Manish Choudhary, R/o Chhan Police Station Mehandwas District Tonk (Rajasthan) (Presently Confined In District Jail Bundi) ----Applicant-Appellant Versus State Of Rajasthan, through Public Prosecutor ----Respondent For Petitioner(s) : Ms. Rekha Arora For Respondent(s) : Mr. Vijay Singh Yadav, Public Prosecutor HON'BLE MR. JUSTICE GANESH RAM MEENA Order 03/01/2025 1. The present suspension of sentence application has been filed by the applicant-appellant under Section 389 of Cr.P.C. against the judgment of conviction dated 01.08.2023 passed by learned Special Court, POCSO Act Cases No.2, Bundi in Sessions Case No.104/2022 whereby, the accused-appellant has been convicted for offence under Sections 363, 366 & 376(3) of IPC and in alternate Section 5(L)/6 of POCSO Act, 2012 and sentenced. 2. Learned counsel for the applicant-appellant submits that the accused-appellant was on bail during trial and has never misused the liberty of bail granted to him. Counsel further submits that the accused-appellant and the victim were having a love affair and since the parents of the victim were trying to marry her with some [2025:RJ-JP:428] (2 of 4) [SOSA-1318/2023] other person, she herself went along with the accused-appellant. Counsel further submits that the age of the victim has been wrongly determined by the prosecution and the learned trial Judge has also not considered the material evidence of the parents of the victim i.e. PW-1 (father of the victim) and PW-2 (mother of the victim) wherein their version clearly speaks that the victim is a major girl. Counsel for the appellant also submits that once the trial Court has convicted the accused-appellant for offences punishable under the POCSO Act, there was no occasion to convict him under the IPC offences and impose sentence separately. Counsel further submits that the version of the victim itself is not credible and reliable enough to convict the accused-appellant. 3. Learned Public Prosecutor on the other hand opposed this suspension of sentence application and submits that the victim is a minor girl of about 12 years of age and there are certain documentary evidence corroborated by the oral evidence of PW-4- Radheshyam, who is the headmaster of the school where the girl was admitted for primary education. He also submits that specific allegation of penetrative sexual assault has been levelled against the appellant by the victim during her examination before the trial Court. 4. Considered the submissions made at bar and also perused the material available on record. 5. The counsel for the appellant submits that there was a love affair between the accused-appellant and the victim and they had a consensual relationship, in such circumstances the only issue to be considered is whether the victim is a minor or a major. [2025:RJ-JP:428] (3 of 4) [SOSA-1318/2023] 6. The father of the victim has been examined as PW-1. In his cross examination he has deposed that his marriage was solemnized 30 to 35 years ago and his wife gave birth to all their three children at yearly intervals after about one year of marriage. 7. The mother of the victim who has been examined as PW-2, has also deposed the same facts as has been deposed by the father of the victim as regards the birth of their children. 8. Though there are certain documentary evidence as regards the admission of the victim in school for primary education but the date of birth as mentioned in the said documents is not supported by any material evidence as like Janampatri or birth certificate etc. 9. PW-4- Radheshyam, who is the headmaster of the school has also stated that no documents as regards the date of birth of the victim has been submitted when she was admitted in the school for primary education. 10. Considering the statements of the parents of the victim as compared to the other evidences available as regards the age of the victim, there is dispute regarding her age which requires detailed consideration to be made at the time of filing hearing of the petition. 11. As regards the submissions made by counsel for the appellant in reference to the consensual relationship between the accused-appellant and the victim, the Court has perused the statements of the victim recorded during her examination before the trial Court as well as her statement recorded under Section 164 of Cr.P.C. [2025:RJ-JP:428] (4 of 4) [SOSA-1318/2023] 12. On perusal of the statements of the victim, this Court prima facie finds element of consent between both the appellant and the victim. 13. Having regard to the submissions made by counsel for the appellant and the discussions made above, this court deems just and proper to suspend the sentence imposed upon the accused- appellant. 14. Accordingly, this application for suspension of sentence is allowed and it is ordered that the sentence awarded to accused- appellant- Dilkhush S/o Ranglal in Sessions Case No.104/2022 shall remain suspended on furnishing a personal bond of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the learned trial Court to the effect that he shall appear before the Registrar Judicial of this Court on 03.02.2025 and further on subsequent date(s) as and when called upon to do so till the disposal of the appeal on the conditions as follows:- A. After release of the accused-appellant, he shall not indulge in any criminal activity and if it is found that he is involved in any criminal activity, the order shall be recalled. B. He will appear before the trial Court in the month of February of every year till the appeal is decided. C. If the appellant changes the place of residence, he will give in writing his changed address to the trial Court as well as the counsel in the High Court. D. Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court. 15. A copy of this order be sent to learned trial Court through e- mail. (GANESH RAM MEENA),J Satyendra/16