JUDGMENT 1. Learned counsel for the State has filed affidavit of Shri Satvinder Kumar, Superintendent, District Jail Bhiwani mentioning the period of imprisonment undergone by Anil @ Billu (applicant/appellant). The same is taken on record. 2. Heard learned counsel for the parties. 3. The criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of Anil @ Billu (applicant/appellant), who has been convicted by the learned Additional Sessions Judge, Bhiwani for the offences punishable under Sections 365 read with Section 34 and Section 376-D IPC. Anil @ Billu (applicant-appellant) has been sentenced to rigorous imprisonment for a period of 20 years besides pay a fine of Rs. 25,000/- and in default thereof simple imprisonment for six months for the offence under Section 376-D IPC. Besides he has been sentenced to rigorous imprisonment for seven years and pay a fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for two months for the offence under Section 365/34 IPC. Both the sentences of imprisonments have, however, been ordered to run concurrently. 4. The prosecutrix (PW-5) has alleged that she was going to the house of her Aunt (mother’s sister) situated at village Kungar at about 11:00 a.m. on 30.04.2013 for massaging of her stomach. Anil @ Billu (applicant-appellant) as also Satbir (accused No. 2) forcibly took her on their motorcycle. She was forced to inhale something on which she became unconscious. Thereafter, rape was committed upon her by the said two accused i.e. Anil @ Billu (applicant-appellant) and Satbir (accused No. 2). She did not know where the rape was committed on her person because she was not fully conscious. She regained consciousness at about 4:00/5:00 p.m when she received a call on her mobile phone from her brother. She was recovered from Nehru Park on 01.05.2013. 5. Learned counsel for the applicant-appellant submits that in fact the prosecutrix had gone with the applicant-appellant and she was in fact a consenting party. He has made a reference to the call details Ex. PW1/D which are attached as Annexure A-2 with the criminal miscellaneous application. On the strength of the said call details, it is submitted that the prosecutrix had herself been calling both the accused. However, despite that in her deposition she states that she did not know the accused and thereafter, again changed her stand by stating that she knew them. PW1/D which are attached as Annexure A-2 with the criminal miscellaneous application. On the strength of the said call details, it is submitted that the prosecutrix had herself been calling both the accused. However, despite that in her deposition she states that she did not know the accused and thereafter, again changed her stand by stating that she knew them. It is submitted that the call details and the medical evidence on record do not show that the prosecutrix had been kidnapped or that rape had been committed on her. 6. In response, learned counsel for the State has opposed the application. It is submitted that the prosecutrix has clearly stated that Anil @ Billu (applicant-appellant) and his co-convict Satbir had committed rape on her and there is no evidence to controvert her statement. 7. We have given our thoughtful consideration to the contention of learned counsel for the parties. 8. According to the affidavit that has been filed in Court today, Anil @ Billu (applicant/appellant) has undergone actual imprisonment of two years six months and six days as on 09.11.2015. There is no other case pending against him. The contention raised by learned counsel for the applicant-appellant that the call details show that the prosecutrix was speaking with Anil @ Billu (applicantappellant) on the day of incident and the duration of the call is also quite substantial, would require consideration at the time of final hearing of the appeal as to whether it was a case of consent as contended by the learned counsel for the applicant-appellant. The appeal is not likely to mature for hearing in the near future. 9. In the circumstances, the criminal miscellaneous application is allowed and the sentence of imprisonment of Anil @ Bilu (applicant-appellant) shall, during pendency of the appeal remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Bhiwani. ---------0.B.S.0------------