- (1.) HEARD the counsel for the accused-appellant and the learned Public Prosecutor. Mr. S.S. Hasan, appearing for the accused-appellant, submits that the prosecutrix was in the company of the accused-appellant for over ten days and travelled with him in public transport through public places without raising hue and cry or even attempting to escape from his clutches. He submits that in this view of the matter, the statements of the prosecutrix contrary to her conduct ought not to have inspired confidence as they did before the trial court. It is submitted that the evidence of the prosecutrix was on the count of lack of consensus unbelievable. Further in the medical examination of the prosecutrix, there were no injuries on her body indicative of any violence and coercion. It is submitted that the prosecutrix was also found to have been habituated to sexual intercourse.
(2.) COUNSEL further submits that with regard to the age of the prosecutrix in the FIR itself, her age has been indicated as 16 years. He submits that as the prosecutrix was largely unschooled, there was no definite evidence of her date of birth with reference her being admitted to school. No certificate of date of birth was on record. It is submitted that Dr. M.L. Kavat (PW-1), who conducted the medical examination of the prosecutrix on the basis of her physical development, dental age and X-rays, gave out the age of the prosecutrix as between 15 to 17 years which matches the age of the prosecutrix in the FIR. Counsel further submits that the trial court has also overlooked Exhibit D4(A) which was the 'Nikahnama' of the prosecutrix with one Mohammad Khurshid on 14.02.09 (before the incident in issue) wherein not only she had signed, but also her father Babu Khan had also signed. Therein the age of the prosecutrix has been indicated as 20 years. Counsel submits that in this view of the matter, there ought to have no manner of doubt before the trial court that the prosecutrix was not less than 16 years rendering evidently consensual sex as rape. The learned Public Prosecutor has very little to say in view of the aforesaid fact except to parrot the finding of the trial court that the prosecutrix having been found less than 16 years of age, the accused-appellant has been rightly convicted. After considering the submissions of the counsel for the parties, but without expressing any opinion on merits or demerits of the appeal, I would exercise the discretion of this Court in the facts of the case by allowing this application for suspension of sentence. Consequently, the application for suspension of sentence is allowed. It is directed that sentence of imprisonment of the accused-appellant namely Lukman S/o Siddik Khan shall remain suspended during pendency of the appeal and he shall be released on bail provided, he furnishes a personal bond in the sum of Rs.25,000.00 (Rupees Twenty Five Thousands) with one surety of the like amount to the satisfaction of the trial court to appear before this Court on 06.03.2013 and as and when he is called upon to do so.;