- (1.) This second application seeking suspension of sentence has been filed by the applicant ? Dashrath Singh, who has been convicted and sentenced by judgment dated 20 th September, 2017 passed by the Sessions Judge, Jalore in Sessions Case No. 5/2016 for the offences under Sections 342, 366 and 376(d) of IPC.
(2.) The first application seeking suspension of sentence filed by the applicant was dismissed by this Court vide order dated 24 th January, 2018 as not pressed. Hence, this second application.
(3.) Learned counsel Mr. Pradeep Shah appearing for the applicant submitted that the trial court framed the charge against the applicant with co-accused Kripal Singh for the offences under the POCSO Act, however, after appreciating the evidence on record, the trial court has recorded categorical finding in its judgment that the prosecution has failed to prove that victim was a child on the date of incident. Drawing the attention of the Court towards the statement of the prosecutrix (PW-8), learned counsel submitted that apparently the deposition of the prosecutrix is in contravention to her statements recorded under Section 161 Cr.P.C. (Exhibit-D/4) and under Section 164 Cr.P.C. (Exhibit-D/6). Learned counsel submitted that in her statement under Section 161 Cr.P.C. and the examination before the Magistrate under Section 164 Cr.P.C., no allegation was levelled by the prosecutrix against the applicant and the co-accused that she was subjected to sexual assault. Drawing the attention of the Court towards the medical report (Exhibit-P/7), learned counsel submitted that only two abrasions; one on the right breast and second on the right thigh, were found, no other injuries were found on the body of the prosecutrix.;