JUDGMENT 1. - Since the appellant has been convicted for offences under Sections 366, 376 IPC, the entire case turns on the issue whether the prosecutrix was a minor or was major on the date of alleged incident. According to the prosecution, the prosecutrix was less than 16 years old on 26.12.2007, the date of the alleged incident. Therefore, the question of her giving consent to a sexual intercourse does not arise. However, the defence has pleaded that, in fact, she was more than 16 years old on the date of the alleged incident; therefore, the issue of consent is eminently germane to the decision of this case. 2. The prosecution has relied upon the Admission Form (Ex.P-9), S.R. Register (Ex.P-8A) and T.C. Form (Ex.P-10) to buttress its contention that the date of birth of the prosecutrix is, in fact, 04.08.1992. Thus, she was a minor on the date of alleged incident. On the other hand, since the Investigating Agency did not get the age of the prosecutrix determined immediately after she was recovered, when the appellant's bail application was moved before this Court, this Court directed that the prosecutrix's age be determined by a Medical Board. Therefore, on 29.08.2008, the Medical Board gave its finding that the age of the prosecutrix is between 16 to 18 years. 3. Mr. Anurag Sharma, the learned counsel for the appellant, has contended that the learned trial court has erred in heavily relying upon the Admission Form (Ex.P-9), the S.R. Register (Ex.P-8A) and the T.C. Form (Ex. P-10) to conclude that the prosecutrix was, in fact, less than 16 years old. Accordingly to the learned counsel, in the Admission Form (Ex.P-9), the declaration about the date of birth has been made not by the prosecutrix's father, but by her uncle, namely, Kedar Singh. However, Kedar Singh has not been produced as a prosecution witness during the trial. Moreover, although the said form has been signed by the prosecutrix's father, Shiv Charan Singh (PW.3), in his testimony before the court, he does not utter a single word about the existence of the said form. Moreover, in his entire testimony, he does not give the actual date of birth of the prosecutrix. Although Rajrosi (PW.4), has proven the said documents, mentioned above, but in his cross-examination, he clearly admits that the said document was neither written by him, nor had been filled up before him. Moreover, in his entire testimony, he does not give the actual date of birth of the prosecutrix. Although Rajrosi (PW.4), has proven the said documents, mentioned above, but in his cross-examination, he clearly admits that the said document was neither written by him, nor had been filled up before him. Therefore, the learned counsel contends that the date given in the said document cannot be believed. Moreover, the date given in the said document is not made on the basis of the date of birth given at the primary school to which the prosecutrix was admitted to. Thus, the veracity of the date becomes highly doubtful. 4. He has further contended that in the absence of a reliable school records, the only evidence which is-relevant, admissible and reliable would be the medical opinion. According to the Medical Board on 29.08.2008, the prosecutrix was between the age of 16 to 18 years. Thus, on 26.12.2007, she, certainly, would be more than 17 years old. Hence, she would be in a position to give consent. Moreover, the prosecutrix in her testimony clearly states that when she was admitted to class I, she was about seven years old; she had studied till 7th class in the Maharana Pratap Secondary School. Subsequently, she studied for two years in Kamlabai School. Subsequently she studied for two years back in the Maharana Pratap Secondary School; she failed in class 10th. If these facts are taken together, then her age comes out to be 19 years. Considering the fact that the prosecutrix herself gives her age to be 19 years - a fact neither discussed, nor adjudicated upon by the trial court - the prosecutrix sufficiently old enough to give consent. 5. On the other hand, Mr. Pankaj Gupta, the learned counsel for the complainant, has vehemently contended that the learned trial court wars justified in relying upon the Admission Form (Ex.P-9), S.R. Register (Ex.P-8A) and T.C. Form (Ex.P-10) to conclude that the prosecutrix was a m or. According to the learned counsel, the Admission Form was filled in the dear 2006 i.e. one year prior to the alleged incident. Thus, there was no reason for a wrong date to be mentioned in the said documents. Secondly, the said documents were proved by Rajrosi (PW.4). Thirdly, the opinion of the Medical Board is merely an opinion. Being an opinion, it could also be wrong. Thus, there was no reason for a wrong date to be mentioned in the said documents. Secondly, the said documents were proved by Rajrosi (PW.4). Thirdly, the opinion of the Medical Board is merely an opinion. Being an opinion, it could also be wrong. Thus, the learned trial court was justified in brushing aside the opinion of the Medical Board. Fourthly, vide order dated 24.09.2008, this Court had denied the benefit of bail to the appellant after considering the medical evidence which was placed before this Court. Lastly, since the appellant was not on bail during trial, therefore, his sentence should not be suspended during the appeal.Heard the learned counsel for the parties and perused the record. 6. Undoubtedly, the prosecution has to prove its case beyond a reasonable doubt. Since the entire issue in the present case is with regard to the age of the prosecutrix, it was the bounden duty of the prosecution to prove the age of the prosecutrix beyond a reasonable doubt. But for submitting Ex.P-9, Ex.P-8A and Ex.P-10, the prosecution has not done much to establish the age of the prosecutrix in a positive manner. Surprisingly, it has failed to examine the prosecutrix's uncle, who had entered the date of birth of the prosecutrix in Ex.P-9. Moreover, even in the examination-in-chief of her father (PW-3), the prosecution could not elicit the exact date of the birth of the prosecutrix. Obviously, only these two persons were in a position to reveal the exact date of birth of the prosecutrix. In the absence of the testimony of these two persons, the date of birth as noted in the school records cannot be accepted ipsi dixit. Moreover, Rajrosi (PW.4) clearly states that the contents of the application and the contents of the other school documents were neither written by him, nor were submitted before him. Therefore, even he is not in a position to throw light on the actual date of birth of the prosecutrix. Further, the admission form (Ex.P-9) is an admission form for X class. The prosecution has failed to produce the school record of the Primary school which the prosecutrix must have attended. Thus, the school record is prima facie, an unreliable piece of evidence. 7. In the absence of a realiable date of birth, the opinion expressed by the Medical Board should have been preferred. The prosecution has failed to produce the school record of the Primary school which the prosecutrix must have attended. Thus, the school record is prima facie, an unreliable piece of evidence. 7. In the absence of a realiable date of birth, the opinion expressed by the Medical Board should have been preferred. According to the Medical Board, the prosecutrix was between the age of 16 to 18 years on 29.08.2008. Therefore, on 26.12.2007, she was more than 17 years old. Thus, prima facie the prosecutrix seems to be of an age where she could validly give consent for sexual intercourse. Thus, the appellant, prima facie, seems to have a strong case in his favour. 8. Although the learned counsel for the complainant has vehemently contended that the benefit of bail should be denied to the appellant on the ground that he was not on bail during trial. But such a contention is I unacceptable. Firstly, Section 389 Cr.RC. does not mandate that in case an accused person was not on bail during trial, he should be denied bail during the pendency of the appeal. In fact, Section 389 Cr.PC. empowers the appellate court to exercise its discretion judiciously while considering the issue whether to suspend the sentence and to grant bail to the accused I person or not. Therefore, the practice of denying bail ostensibly on the ground that the accused person was not on bail during trial, such a practice is without any legal authority. It may be a rule of prudence, but certainly is not a rule of law. In the case of Kashmira Singh v. State of Punjab, (1977) 4 SCC 291 , the Hon'ble Supreme Court had observed that "No practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice". 9. Secondly, the appellate court has to be alive to the fact that an accused may not be on bail for various reasons : he may be too poor to move a bail application before a court of law, or having been granted bail, he may be too indigent for mustering the sureties for his bail. But poverty cannot be a reason for denying bail to a person during appeal. 10. But poverty cannot be a reason for denying bail to a person during appeal. 10. Thirdly, the discretion of the appellate court cannot be controlled by the observation of the court granting or refusing bail. The jurisdiction of the appellate court is different from the jurisdiction of a court granting bail. The appellate court is duty bound to reappreciate the entire evidence and to re-adjudicate the issues. Thus, its discretion to suspend the sentence cannot be cribbed, cabined and confined by the -observations made by the court refusing the bail. 11. Fourthly, considering the fact that the appeals are taking inordinate time to be decided by the courts, baring exceptional cases, ordinarily it is in the interest of justice to grant bail during the pendency of the appeal. This opinion has been voiced by the Apex Court in the case of Kashmira Singh (Supra) and in the case of Bhagwan Rama Shinde Gosal & Ors. v. State of Gujarat, (1999) 4 SCC 421 . In the case of Bhagwan Rama Shinde Gosal (Supra), the Hon'ble Supreme Court has observed as under : When 'a convicted person is sentenced to fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence so as to make the appeal right meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted. 12. Fifthly, even the courts have to be alive to the fact that liberty is the soul of life. Of course, appellate courts can impose similar conditions when bail is granted. 12. Fifthly, even the courts have to be alive to the fact that liberty is the soul of life. In case, the appellate court is satisfied that the accused appellant has a strong case in favour for acquittal, it would be justified in suspending the sentence and restoring his liberty for the limited period during which the appeal is pending before the court. In case the liberty is not restored for the limited period, it would not only cause a grave injustice to the accused person, but most importantly would violate Article 21 of the Constitution of India Personal liberty should not be clipped and truncated without any justifiable cause. It is for this reason that the Apex Court has repeatedly observed that baring exceptional circumstances, sentence should be suspended. In case, the bail is denied, then a reasoned decision ought to be passed. Thus, the contention of the learned counsel that the benefit of suspension of sentence during appeal should be denied to the petitioner on the ground that he was not on bail during trial is without any merit. 13. Prima facie this Court is of the opinion that the prosecutrix in this case was above the age of 16 years. Therefore, she was in a position to give consent for sexual intercourse. Considering the totality of the evidence, the appellant has strong case in his favour for acquittal for offence under Section 376 IPC. 14. For the reasons stated above, the sentence awarded to the appellant shall remain suspended till the final decision of the instant appeal and the appellant, Udal Singh S/o Shri Samay Singh shall be released on bail, provided he furnishes a personal bond in the sum of Rs. 30,000/- (Rs. Thirty thousand) with two sureties of the like amount to the satisfaction of the trial court to the effect that he shall appear before this court on May 10, 2010 and as and when called upon to do so.Five Principles for dealing with suspension of sentence stated, under Paras 8-12. *******