Sujit Narayan Prasad, J. I.A. No. 7523 of 2025: 1. The instant interlocutory application has been filed under Section 4 30 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for keeping the sentence in abeyance in connection with the judgment of conviction dated 28.09.2024 and order of sentence dated 30.09.2024 passed by the learned A.J.C.-IV-cum-Special Judge, POCSO, Ranchi in POCSO Case No. 127 of 2022 arising out of Tamar P.S. Case No. 65 of 2022, whereby and whereunder, the appellant has been convicted and sentenced to undergo Rigorous Imprisonment for 10 years along with fine of Rs. 15,000/- for the offence punishable under Sections 376(2) of IPC and in default of payment of fine, he has further been sentenced to undergo further simple imprisonment for 6 months; and in view of Section 4 2 of the POCSO Act, 2012, no separate sentence is being passed under Section 4 of the POCSO Act. Factual Matrix: 2. The brief facts of the case as per the written report of the informant is as under: The victim has given a typed report to O/c Tamar P.S. on 26.07.2022 and stated therein that she is a poor minor girl aged about 15 years and the appellant herein allured her and also gave assurance to marry her and established physical relation with her many times since last one year and the victim became pregnant and gave birth to a female child. She demanded maintenance for the said child, then the appellant refused to give any maintenance for the said child and also refused to marry with the victim and had also given threat to kill the victim and her child. 3. On the basis of the aforesaid written report, FIR being Tamar P.S.Case No. 65 of 2022 was instituted and the police took up investigation into the case and accordingly chargesheet was submitted against the present appellant. 4. The Trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person and found the charges levelled against the appellant proved beyond all reasonable doubts. 5. Accordingly, the appellant has been convicted and sentenced to undergo Rigorous Imprisonment for 10 years along with fine of Rs. 4. The Trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person and found the charges levelled against the appellant proved beyond all reasonable doubts. 5. Accordingly, the appellant has been convicted and sentenced to undergo Rigorous Imprisonment for 10 years along with fine of Rs. 15,000/- for the offence punishable under Sections 376(2) of IPC and in default of payment of fine, he has further been sentenced to undergo further simple imprisonment for 6 months; and in view of Section 4 2 of the POCSO Act, 2012, no separate sentence is being passed under Section 4 of the POCSO Act. 6. The instant interlocutory application has been preferred by the applicant/appellant with the prayer for the suspension of sentence during pendency of the instant appeal. Arguments advanced by the learned counsel for the appellant: 7. It has been submitted by the learned counsel for the appellant that on earlier occasion also, the appellant had moved before this Court for suspension of sentence by filing I.A. No. 727 of 2025 which has been dismissed as not pressed vide order dated 04.02.2025. 8. It has been further been contended that the DNA test done by the FSL has come with the finding that the appellant is not a biological father of the child born to the victim, but going against the report of the FSL, the learned Trial Court arbitrarily has supposed that the appellant is the biological father of the child born to the victim and also the medical report has not proved the alleged offence of rape against the victim. 9. Further, contention has been made that in the panchayati held by the villagers, the victim herself had admitted before the villagers that she was in love with another person and she wanted to get married with that person. 10. Further, there is no documentary evidence on record to show that the victim was minor at the time of alleged occurrence. 11. It has been contended that the appellant was languishing in judicial custody since 27.07.2022. 12. Learned counsel for the appellant, on the aforesaid premise, has submitted that, therefore, it is a fit case where the sentence is to be suspended so that the appellant be released on bail. Arguments advanced by the learned State counsel: 13. 11. It has been contended that the appellant was languishing in judicial custody since 27.07.2022. 12. Learned counsel for the appellant, on the aforesaid premise, has submitted that, therefore, it is a fit case where the sentence is to be suspended so that the appellant be released on bail. Arguments advanced by the learned State counsel: 13. Per contra, learned Special Public Prosecutor appearing for the respondent-State has vehemently opposed the submissions advanced by the counsel for the appellant for grant of bail during pendency of the appeal. 14. Further, submission has been made that the victim and her mother have fully supported the case of prosecution and it has come in the evidence that the convict, appellant herein, has established physical relation with the victim many times on the false assurance of marriage. 15. Learned Special Public Prosecutor, on the aforesaid premise, has submitted that, therefore, it is not a fit case where the appellant deserves the privilege of bail by suspension of sentence. Analysis: 16. We have heard the learned counsel for the parties and have given our anxious consideration to the submissions advanced at the bar and have carefully gone through the finding recorded by the learned trial court in the impugned judgment as also the testimony of the witnesses and the material placed on record. 17. Admittedly on earlier occasion, the appellant/applicant had moved before this Court for suspension of sentence by filing I.A. No. 727 of 2025 which has been dismissed as not pressed vide order dated 04.02.2025. 18. Before adverting into merit of the case it needs to refer herein that there is difference between grant of bail in case of pre-trial arrest and suspension of sentence, post- conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, however, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise, reference in this regard be made to the Preet Pal Singh vs. State of U.P. , (2020) 8 SCC 645 . For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: "35. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: "35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC." 19. Thus, it is evident from the aforesaid judgment, that while considering suspension of sentence which is the post-conviction stage, the presumption of innocence in favour of the accused cannot be available and at this stage, the Court’s only duty is to see that the prima-facie case is made out or not and as such the detailed appreciation of evidence is not required at this stage. 20. The learned counsel for the appellant has contended that the DNA test done by the FSL has come with the finding that the appellant is not a biological father of the child born to the victim, but going against the report of the FSL, the learned Trial Court has convicted the applicant/appellant. Further, it has also been contended that the medical report has not proved the alleged offence of rape against the victim and doctor who had examined the victim has opined that there is possibility of consensual sex. Further, it has also been contended that the medical report has not proved the alleged offence of rape against the victim and doctor who had examined the victim has opined that there is possibility of consensual sex. Further, there is no documentary evidence on record to show that the victim was minor at the time of alleged occurrence. 21. Per contra learned APP has contended that admittedly as per the report of DNA the accused/applicant Satyanarayan Swansi is not biological father of female child born from the victim but it is not the case that who is biological father of the child rather the victim who has been examined as P.W.1 has specifically stated that on the pretext of marriage the applicant/appellant has established sexual relation with her. She had further stated that when sexual relationship was established with her at that time she was at the age of 15. It has further been contended that in the matter of POCSO there is no meaning of any consent, reason being that the POCSO Act is the Gender-Neutral Act and is meant only to take cases of child etc. 22. In the backdrop of the aforesaid rival contention, it needs to refer herein that to deal with the sexual offences of the child as per the meaning of child as defined under section 2(1)(d) of the POCSO Act, 2012, the consent is also having no meaning as has been held by Hon’ble Apex Court in the case of " X Vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Another " reported in (2023) 9 SCC 433 . 23. Thus, this Court is of the considered view that the meaning of consent so far as the POCSO Act is concerned, is having no relevance. The reason for such view is that if the consent would have any relevance, then the question is that for what purpose the POCSO Act has been legislated when the penal provision as under Section 376 IPC was already there when the POCSO Act, 2012 has been notified. 24. The reason for such view is that if the consent would have any relevance, then the question is that for what purpose the POCSO Act has been legislated when the penal provision as under Section 376 IPC was already there when the POCSO Act, 2012 has been notified. 24. It needs to refer herein that it is more than a decade that the special Act (POCSO Act) is in operation and it is pertinent to note that at the time of introduction of the POCSO Act, "age of consent" for unmarried girl was 16 and it was presumed that any one below this age cannot lawfully consent to sexual intercourse. The POCSO Act raised the "age of consent" to 18 years and following the recommendations of Justice J.S. Verma Committee, in the wake of a gruesome incident, which took place in NCT, Delhi, Section 375 of IPC was also amended by the Criminal Law (Amendment) Act, 2013. 25. As a consequence of the aforesaid provisions, an act of sexual indulgence with a girl below 18 years, would attract the rigors of the POCSO Act as well as the offence under Section 376 of IPC, and it is being immaterial, whether it is a consensual relationship, as the law presume that a girl below 18 years is not capable of consenting to sexual intercourse and in such a scenario, even if a girl is below 18 years, consents to a sexual intercourse, her consent must be ignored and the other party Shall be guilty of committing an offence under the POCSO Act. 26. The POCSO Act deals with number of situations with regard to sexual offence against children. The relevant factor such as penetrated sexual assault as well as aggravated penetrated sexual assault depends on nature of sexual assault, therefore, the consent of minor, is immaterial. 27. The Hon’ble Apex Court in the case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat , (2015) 7 SCC 359 has categorically held that if the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: "16. 27. The Hon’ble Apex Court in the case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat , (2015) 7 SCC 359 has categorically held that if the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: "16. Once we put the things in right perspective in the manner stated above, we have to treat it as a case where the appellant has committed rape of a minor girl which is regarded as a heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind the Protection of Children from Sexual Offences Act, 2012." 28. Further, in the case of X Vs. Principal Secretary" (supra), the Hon’ble Apex Court has laid down that in the matter of POCSO Act, consent has got no meaning. For ready reference the relevant paragraph is being quoted as under: "82. ----- The Protection of Children from Sexual Offences Act, 2012 ("the Pocso Act") is gender neutral and criminalises sexual activity by those below the age of eighteen. Under the Pocso Act, factual consent in a relationship between minors is immaterial. -----" 29. The Hon’ble Supreme Court in a recent case of "X (Minor) Vs. The State of Jharkhand and Anr" . reported in 2022 SCC OnLine SC 2373 has dealt with the issue of consent and has considered the averment with regard to love-affair and relevant paragraph No.6 is reproduced hereinafter :- "6. The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO." 30. On the basis of discussion made hereinabove, this Court is of the view that since we are dealing with the case of minor, as such consent has got no meaning in the instant case as we are to go by the legal provision, particularly, in a case of POCSO Act. 31. In the backdrop of the aforesaid settled legal position this Court is now adverting to the factual aspect of the instant case. 32. It is evident that the P.W.1, informant/victim has stated in her examination-in-chief that the accused forcibly committed rape upon her and has given assurance to marry her but he did not solemnized marriage with the victim and gave assurance that he will firstly construct his house then he will marry the victim. It is further stated that the accused made physical relation with this victim, at that time the victim was aged about 15 years. It is further stated that she told her parents about the occurrence and also stated regarding the occurrence to her sister and police and her mother got to know about the occurrence after birth of the child. It is further stated she called a panchayati but no one turned up. 33. It is further stated that she told her parents about the occurrence and also stated regarding the occurrence to her sister and police and her mother got to know about the occurrence after birth of the child. It is further stated she called a panchayati but no one turned up. 33. The mother of the victim has been examined as P.W.2 who had fully substantiated the statement of the victim. In para no.7 she has stated that she identified a photograph which was filed by the prosecution in which the accused and victim present with a girl child which is marked "X" for identification. 34. The investigating officer of this case had been examined as P.W.3 and in his testimony, he has stated that the victim is aged about 15 years, thus from testimony of investigating officer it has been established that the victim was minor at the time of the alleged occurrence. 35. Admittedly herein as per the DNA report applicant/appellant is not the biological father of victim’s child but it is considered view of this Court that herein the charge under Section 376(2)(n) of IPC has been framed against the applicant/appellant, therefore it is not the question herein that the appellant is biological father of the child of victim or not rather the question herein that whether the victim was subjected to rape by the appellant. 36. Herein admittedly the victim is aged about 15 years as per the testimonies of the prosecution witnesses, thus, at the time of occurrence her consent was immaterial because she was minor on the date of occurrence and further the victim had fully supported her case as per FIR and the testimony of P.W.1 victim has fully been substantiated by the P.W.2. 37. Further it is evident from the impugned order/judgment that the defence has not produced any evidence for rebutting the allegation and presumption u/s 29 and 30 of POCSO Act and it goes against the applicant and as per Section 29 of POCSO Act when a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. Thus, in the instant case, the presumption of culpable mental state of the accused/applicant is discernable and he also failed to rebut the presumption u/s 29 of the POCSO Act. 38. Further paternity of female child of the victim was not the subject matter rather the accused/appellant had faced the trial for the charge of rape under POCSO Act as well as under Section 376(2) (n) of the IPC and the victim always stated before the court that accused established physical relation with the her many times and further herein at the time of alleged offence victim was minor, as such consent has got no meaning under the POCSO Act. 39. On the basis of discussion made hereinabove, this Court is of the view that it is not a fit case where the sentence is to be suspended during pendency of the instant appeal. 40. Accordingly, the instant interlocutory application being I.A. No. 7523 of 2025 is hereby dismissed. 41. It is made clear that any observation made hereinabove will not prejudice the case on merit, since, the criminal appeal is lying pending before this Court for its consideration. 42. In view thereof, I.A. No.7523 of 2025 stands disposed of with the aforesaid observation.