Sentence suspended pending appeal where evidence raised substantial doubt regarding the victim’s age and alleged kidnapping.

The applicant-appellant was convicted by the Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur at Nahan, in Sessions Trial No. 14-ST/7 of 2020 arising from FIR No. 40 of 2020 registered at Police Station Pachhad.

He was sentenced to 20 years’ rigorous imprisonment and a fine of ₹20,000 under Section 6 of the POCSO Act, with a default sentence of two years’ simple imprisonment, and to five years’ rigorous imprisonment with a fine of ₹10,000 under Section 363 IPC, with a default sentence of one year’s simple imprisonment.

During the trial, the victim stated that she had developed a relationship with the applicant, accompanied him voluntarily to different places, and that he had neither kidnapped nor allured her.

Her statement under Section 164 Cr.P.C. similarly recorded that she had left home voluntarily, accompanied the applicant of her own will, and did not want action against him.

The applicant relied on material showing different dates of birth for the victim: 25 March 2000 on her Facebook profile, 30 November 2003 in her deposition, and 30 November 2004 in school and family records.

The applicant sought suspension of sentence during pendency of his criminal appeal.

Whether, having regard to the victim’s statements indicating voluntary accompaniment and the alleged consensual relationship, the applicant’s substantive sentence should be suspended during pendency of the appeal.

Whether the discrepancies in the victim’s recorded date of birth constituted a circumstance justifying suspension of sentence at the appellate stage.

Whether the applicant’s conduct during trial and his surrender after conviction supported grant of suspension of sentence.

The Court applied Section 6 of the Protection of Children from Sexual Offences Act, 2012, concerning aggravated penetrative sexual assault, and Section 363 IPC concerning kidnapping from lawful guardianship.

The governing principle for the application was that the substantive sentence may be suspended during pendency of an appeal where the appellate court, upon a prima facie assessment of the record and surrounding circumstances, considers such suspension appropriate; this does not amount to a final determination on the merits of the appeal.

The Court also considered the statutory principle that the consent of a minor is immaterial in an offence under the POCSO Act, as argued by the State.

The Court considered the material relied upon by the applicant, including the victim’s statement in court, her Section 164 Cr.P.C. statement, her alleged voluntary conduct in accompanying the applicant, the medical record, the abortion application, and the discrepancy between the dates of birth appearing in different records.

Although the State relied on the school certificate to establish minority and argued that consent was immaterial, the Court found that the overall evidence and rival contentions justified suspension of the sentence during the appeal.

The Court expressly clarified that its observations were confined to deciding the suspension application and would not affect the merits of the criminal appeal.

He was directed to furnish a personal bond of ₹1,00,000 with one surety in the like amount, undertaking to appear before the High Court when directed and to surrender to serve the remaining sentence if the appeal was dismissed.

He was further prohibited from engaging in any illegal or unlawful act, particularly a similar offence, failing which suspension of sentence could be cancelled.

The bail bonds were directed to be transmitted to the High Court Registry, and the Trial Court was permitted to act upon a web-downloaded copy of the order after verification.