JUDGMENT : Sujit Narayan Prasad, J. I.A. No. 13404 of 2024 Prayer 1. The instant interlocutory application has been filed on behalf of appellant for suspension of sentence dated 22.09.2022 passed by the learned Special Judge (POCSO), Jamshedpur in Special (POCSO) Case No. 1325 of 2017 arising out of Sidhgora P.S. Case No.78 of 2017, whereby and whereunder, the appellant has been found guilty and convicted under Sections 376(D), 379 and 411 of the Indian Penal Code and under Section 6 of the POCSO Act, 2012 and has been sentenced to undergo RI for 25 years and to pay fine of Rs. 50,000/- for committing the offences under Section 376D of the Indian Penal Code and imposed fine amount of Rs. one lakh, and the amount paid to the victim to meet the medical expenses and her rehabilitation and in default of payment of fine, further sentenced to under RI for five years separately; and has further been sentenced to RI for two years and to pay fine of Rs. 2000/- for committing the offence under Section 411 IPC and in default of payment of fine further sentenced to undergo RI for two months separately. All the sentences were directed to run concurrently. Factual Matrix 2. The prosecution case, in brief, as per the written information by the informant cum victim of this case (P.W.1) is that three years ago from today i.e., since the year 2014, accused Bipul Sharma kept on sexually abusing informant on allurement of marriage. It has further been alleged that taking her in the house of the Subhankar Das (applicant herein) and Bipul Sharma used to make his friends do wrong act with her and also used to make do wrong things by feeding her drugs and Bipul Sharma used to threaten to kill her if she would disclose the said incident to anyone. 3. It has further been alleged that at that time she was aged about 15 years. In the meanwhile, she gave birth to female child and when she could not bear it, she came to her parental home and her mother got her married to Shailendra Deogam at Baridih House No. 567 two months ago where she was living with her husband and baby. 4. In the meanwhile, she gave birth to female child and when she could not bear it, she came to her parental home and her mother got her married to Shailendra Deogam at Baridih House No. 567 two months ago where she was living with her husband and baby. 4. After one and half month of solemnization of her marriage, again Bipul Sharma and Shubhankar Das came there and knocked the door and forcibly entered into her matrimonial home and committed rape with her one by one and went away with Motorcycle N?. JH05BB-4909 of her husband and they caused burn injury in her body with Cigarette. It has further been alleged that both the accused persons are man of highhandedness and they can kill her husband and her brother. 5. On the basis of the written information FIR vide Sidhgora P.S. case No. 78 of 2017 dated 12.05.2017 was registered u/s 376(D), 379 of IPC and Section 8 of the POCSO Act against the present appellant/applicant and one Bipul Sharma. 6. After lodging of FIR, the matter was investigated and after investigation charge-sheet Vide Final Report No. 97 of 2017 dated 30.06.2017 has been filed u/s 376(D), 379, and 411 of the I.P.C and Section 8 of the POCSO Act by the investigating agency against the both the accused persons namely Bipul Sharma and Shubhankar Das. 7. After submission of charge sheet, cognizance was taken vide order dated 10.07.2017 u/s 376(D), 379, 411 and Section 6 & 8 of POCSO Act and after supply of police paper charges were framed vide order dated 08.08.2017 u/s 379,411,376(D) of the IPC and Section 8 of the POCSO Act, and accordingly charges was read over and explained to the accused persons which they have denied and claimed to be tried. 8. In order to substantiate the prosecution case, prosecution has examined altogether seven witnesses in Session Trial and the learned trial court after appreciation of evidence has found the charges levelled against the present applicant proved beyond reasonable doubt and accordingly the present applicant has been convicted and sentenced as mentioned above. 9. The instant interlocutory application has been preferred by the applicant with a prayer for suspension of sentence during pendency of the instant appeal. Submission of the learned counsel for the appellant: 10. 9. The instant interlocutory application has been preferred by the applicant with a prayer for suspension of sentence during pendency of the instant appeal. Submission of the learned counsel for the appellant: 10. Learned counsel for the applicant-appellant has submitted that serious prejudice has been caused since the charge has been altered by the trial court at the stage of argument, by manipulating and inserting the word „aggravated penetrative' without marking initial on that manipulation and without read over and explained to the appellant regarding the altered charge and thereby the FIR which was registered under Section 8 of the POCSO Act has subsequently been altered at the stage of argument, insertion of Section 6 in place of Section 8 of the POCSO Act. 11. It has been submitted that this altered charge has never come to knowledge to the appellant and the learned trial Court convicted the appellant/applicant for the offence, which has never been committed by the appellant, and no opportunity has been given to the appellant/applicant to make defence for the altered charge, hence, serious prejudice has been caused to the appellant. 12. Learned counsel for the appellant has further submitted that other co-convict, namely Bipul Sharma has been granted bail by keeping his sentence in suspension vide order dated 10.04.2024 passed by the Co-ordinate Bench of this Court in I.A No. 9334 of 2023 in Cr. Appeal (DB) No. 1739 of 2023 and against the said co-accused also, the victim, who has been examined as P.W. 1, has deposed the identical imputation as that of present appellant. 13. It has been submitted that the learned trial Court has also not considered that version of the victim regarding her age, which is suspicious since at the time of lodging of FIR she has disclosed her age to be 18 years and just after 20 days at the time of recording her statement under Section 164 Cr.P.C, she has disclosed her age to be 15 years and further during trial, after one year, at the time of her statement as P.W. 1 she has disposed her age to be 18 years. 14. 14. Learned counsel for the appellant has further submitted that as a matter of fact, there is matrimonial dispute between the victim and another co-accused, namely, Bipul Sharma and the victim is the second wife of the said Bipul Sharma and when dispute arose in between them, she has no remedy to file 498A IPC as well as the maintenance case, hence making a concocted story, the appellant and the husband of the victim has been falsely implicated in this case. 15. In support of his submission, learned counsel for the appellant has relied upon following judgments: (i) Girraj Prasad Meena v. State of Rajasthan and Ors. (2014) 13 SCC 674 (Para-12) (ii) Chandra Pratap Singh v. State of M.P., (2023) 10 SCC 181 (Para-13) (iii) Anant Prakash Sinha v. State of Haryana and Anr., (2016) 6 SCC 105 (Para-16 &17) (iv) A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 (Para-57) 16. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the present applicant/ appellant may be released on bail by suspending the sentence during pendency of the instant appeal. Submission of the learned counsel for the State: 17. While on the other hand, the learned APP appearing for the State has vehemently opposed the prayer for suspension of sentence. 18. It has been submitted that from the testimony of the witnesses it is amply evident that the prosecution has established the charge beyond all reasonable doubt that the victim, who is below 18 years of age, has been subjected to gang rape/aggravated penetrative sexual assault by the appellant and another co-accused. 19. It has further been submitted that admittedly as per medical report, the victim of this case was 19 years old at the time of institution of FIR but it reflects from the prosecution story that the alleged occurrence was occurred firstly in the year 2014 and the same was continued till filing of instant FIR thus if the version of defence is taken in true aspect even then it will be presumed that in the year 2014 the victim was below the age of 18 years and hence she was not able to give her consent to establish physical relation with the accused /applicant in the light of provision as contained under Section 375 of IPC or POCSO Act. 20. 20. Further it has been established from the testimony of investigating officer that both the accused persons including present applicant were apprehended red handed with the said motorcycle and they have not produced any document thereof to show that they are real owner of the said motorcycle and this fact itself corroborates the story of the prosecutrix. 21. So far the issue of parity is concerned, it is settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that co- accused/co-convict has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. 22. Learned counsel for the respondent, therefore, has submitted that it is not a fit case for suspension of sentence against the present applicant during pendency of the instant appeal. Analysis: 23. We have heard learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned judgment as also the testimony of the witnesses as available in the Lower Court Records. 24. This Court in order to appreciate the foremost argument advanced by the learned counsel for the appellant on the issue of prejudice, by altering the charge by changing Section 8 to that of Section 6 of the POCSO Act, has gone through order dated 23.08.2022 passed by learned trial court whereby charge framed under Section 8 of the POCSO Act has been corrected to that of Section 6 of the POCSO Act. For ready reference the order dated 23.08.2022 is being referred as under: “ 23.08.2022 Accused Subhankar Das is in attendance and another accused Bipul Shukla was produced from jall custody through video-conferencing from Central Jail, Hotwar Ranchi. Today this case-record is fixed for hearing on amendment of charge. For ready reference the order dated 23.08.2022 is being referred as under: “ 23.08.2022 Accused Subhankar Das is in attendance and another accused Bipul Shukla was produced from jall custody through video-conferencing from Central Jail, Hotwar Ranchi. Today this case-record is fixed for hearing on amendment of charge. Heard both sides and perused the case-record from which it appears that vide order dated 08.08.2017 charge has been framed against both the above named accused persons for committing the offence Us 379, 411 and 376D of the IPC and Section 08 of the POCSO Act and it came to notice of the court during the course of argument that due to some clerical mistake, Section 08 of the POCSO Act has been written in the format of charge as a while, the entire contents of charge is related with Section 06 of the POCSO Act but due to slip of pen, in place of Section 06 of the POCSO Act, Section 08 of the POCSO Act has been written by the then Presiding Officer. It would be important to mention here that charge has already been framed against the above named both the accused persons U/s 376D of the LPC and almost similar ingredients is of Section 06 of the POCSO Act if the penetrative sexual offence is committed with minor child and thus, it is view of this court that this irregularities should be corrected at once and thus, by exercising the power contained U/s 216 of the Cr.PC, in place of Section 08 of the POCSO Act, Section 06 of the POCSO Act is written today in the format of charge dated 08.08.2017 and the amended charge was read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. It is view of this court that the said alteration in charge, will not effect the prosecution case and the accused persons will not be prejudiced from the said alteration as both the accused persons are facing trial for committing offence U/s 376 of the IPC also and they are facing the trial knowing the fact that there is allegation against them that both have committed penetrative sexual assault with the victim and hence, in my view, the alleged alteration, it would be deemed to be altered with the effect of order dated 08.08.2017 and there is no need to recall the witnesses for their cross-examination. Accordingly, with the consent of both sides, this case-record is fixed on 01.09.2022 for argument. Dictated (Sanjay Kumar Upadhyay) Special Judge (POCSO) LD, No. 427 Jamshedpur 23.08.202” 25. It is evident from order dated 23.08.2022 that the learned trial Court has observed that the court during the course of argument has found that due to some clerical mistake, Section 8 of the POCSO Act has been written in the format of charge as a while the entire contents of the charge is related with Section 6 of the POCSO Act but due to slip of pen in place of Section 6 of POCSO Act, Section 8 POCSO Act has been written by the then Presiding Officer. Accordingly, the learned trial court taking into consideration the fact that since penetrative sexual offence is committed with minor child, in exercise of power conferred under Section 216 Cr.P.C corrected the charge to Section 6 of the POCSO Act in place of Section 8 of the POCSO Act. It is apparent from the aforesaid order that the amended charge was read over and explained to the accused persons, including the present applicant/appellant in Hindi to which they pleaded not guilty and claimed to be tried. 26. It further appears that order dated 23.08.2022 has never been challenged by the accused persons in any forum and thereby the same has been accepted and attained its finality. 27. 26. It further appears that order dated 23.08.2022 has never been challenged by the accused persons in any forum and thereby the same has been accepted and attained its finality. 27. The learned counsel for the applicant emphatically raised the issue of prejudice due to alteration of charge at the argument stage and that before one month from pronouncement of judgment of conviction and in order to substantiate this limb of argument he has put reliance on the judgment rendered by the Hon'ble Apex Court in the case of Girraj Prasad Meena v. State of Rajasthan and Ors. (supra) , Chandra Pratap Singh v. State of M.P (supra) and Anant Prakash Sinha v. State of Haryana and Anr., (supra) 28. This Court has gone through the aforesaid judgments and has found that in the aforesaid judgments, the Hon'ble Apex Court has dealt with the issue of prejudice while alteration in charge and has observed that the filing of charge-sheet and taking cognizance has nothing to do with the finality of charges, as charges framed after the cognizance is taken by the court, can be altered/amended/changed and any charge can be added at any stage up to the stage of conviction in view of the provisions of Section 216 CrPC. The only legal requirement is that, the accused is entitled to have an opportunity of hearing as required under the provisions of Section 217 CrPC. 29. Further, it has been observed therein that even an appellate court can exercise the power under Section 216 of altering or adding the charge but elementary principles of natural justice require to be followed by the appellate court when prejudice is likely to be caused to the accused by alteration or addition of charges. 30. This Court is conscious with the fact that there is no dispute regarding aforesaid settled legal position that Court can exercise the power under Section 216 of altering or adding the charge but elementary principles of natural justice requires to be followed by the Court concern when prejudice is likely to be caused to the accused persons by alteration or addition of charges. 31. Further, it is settled position of law that the alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. 31. Further, it is settled position of law that the alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. Section 216 CrPC, as is evincible, does not lay down that the court cannot alter the charge solely because it has framed the charge and there is scope for alteration of the charge during trial on the basis of material brought on record. 32. In the case of Jasvinder Saini v. State (Govt. of NCT of Delhi) , (2013) 7 SCC 256 , it has been held by the Hon'ble Apex Court that circumstances in which addition or alteration of charge can be made have been stipulated in Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the procedure to be followed once the court decides to alter or add any charge. It has been laid down therein that the question of any such addition or alteration generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. 33. Thus, as per settled proposition of law, the trial Court is empowered under Section 216 of the Code of Criminal Procedure to add/alter the charge at any stage of trial before judgment is pronounced and while doing so the trial Court has only to take care that prejudice is not to be caused to the accused person(s) and further there is no dispute that it is the bounden duty of the trial Court to have a fair and transparent proceeding so as ample opportunity be given to the parties to put forth their case. 34. Since the issue of prejudice caused to the appellant/accused has been raised strongly by the learned counsel, this Court first deems it fit and proper to have a glance to the meaning of “prejudice” in criminal jurisprudence. Any action will be said to be prejudicial if it substantially affects the right of the litigant. 34. Since the issue of prejudice caused to the appellant/accused has been raised strongly by the learned counsel, this Court first deems it fit and proper to have a glance to the meaning of “prejudice” in criminal jurisprudence. Any action will be said to be prejudicial if it substantially affects the right of the litigant. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Rafiq Ahmad @ Rafi vs State of Uttar Pradesh [ (2011) 8 SCC 300 ] , wherein at paragraphs 34, 35 and 36 it has been held as under: 34.In the light of the above principles, let us now examine the meaning of “prejudice”. The expression has been defined in Black’s Law Dictionary (8th Edn., p. 1218), as follows: “Prejudice.—1. Damage or detriment to one’s legal rights or claims. See dismissal with prejudice, dismissal without prejudice under DISMISSAL. Legal prejudice.—A condition that, if shown by a party, will usu. defeat the opposing party’s action; esp., a condition that, if shown by the defendant, will defeat a plaintiff’s motion to dismiss a case without prejudice. The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defence that will be unavailable or endangered in a second suit. Undue prejudice.—The harm resulting from a fact-trier’s being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that calm and logical reasoning is abandoned. 2. A preconceived judgment formed without a factual basis; a strong bias.” 35. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial: (a) The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond reasonable doubt. 36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. “Prejudice” is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court.” 35. This Court, in the backdrop of the aforesaid settled legal position this Court in order to consider the ground of prejudice, has further considered the testimonies of witnesses in entirety and found that the material on the basis of deposition of the witnesses has come by putting specific question of commission of offence under Section 6 of the POCSO Act, which has duly been cross-examined by the appellant also, as would be evident from the cross-examination of different witnesses including the victim. 36. 36. The question of prejudice will only come to play if the parties are not at all aware with the issue of alteration of charge and at the time of framing of charge the different charge was there and pursuant thereto in exercise of power conferred under Section 216 Cr.P.C if the charge has been altered having no knowledge about the same, then certainly the prejudice would be caused to the concerned accused but that is not the fact herein, since amended charge was read over and explained to the accused persons, including the appellant in Hindi to which they pleaded not guilty and claimed to be tried. Further, during cross-examination question has been put in reference to the content of the imputation of charge attracting Section 6 of the POCSO Act with respect to penetrative sexual assault. 37. The learned counsel for the appellant has also relied upon the Constitution Bench judgment of the Hon'ble Apex Court in the case of A.R. Antulay v. R.S. Nayak, (supra) and argument has been advanced on behalf of appellant that on the ground of prejudice having been caused, the present application is fit to be allowed. 38. We have gone through the said judgments along with other judgments on the issue of prejudice and found that the factual background of each judgment is not fit to be applicable reason being that it is not the case of the applicant/appellant that he was not knowing about the alteration of charge, which has been altered by substituting Section 8 to that of Section 6 of the POCSO Act, which is in presence of the accused persons, as would be evident from order dated 23.08.2022 and has never been challenged by the appellant. 39. Further, the question has also been put in order to deny the offence committed under Section 6 of the POCSO Act. 40. The question of prejudice as has been held by the Constitution Bench of Hon'ble Apex Court is based upon the principle of natural justice as observed therein, that legal position cannot be disputed. 39. Further, the question has also been put in order to deny the offence committed under Section 6 of the POCSO Act. 40. The question of prejudice as has been held by the Constitution Bench of Hon'ble Apex Court is based upon the principle of natural justice as observed therein, that legal position cannot be disputed. The ratio of the said judgment is not applicable in the facts and circumstances of the present case reason being that it was never the case of the appellant that he was not knowing about imputation so as to attract offence committed under Section 6 of the POCSO Act rather it is evident from examination/cross-examination of the witnesses, answers has been given in denial to the commission of offence said to be committed under Section 6 of the POCSO Act. 41. At this juncture it needs to refer herein that it is settled position of law that each case is to be tested on the basis of facts of each case, as has been held in the case of Dalbir Singh v. State of Punjab, (1987) 3 SCC 360 wherein at paragraph 15 it has been held as under: "15. Learned Counsel on question of appreciation of evidence referred to number of decisions but it could not be disputed that no hard and fast rule could be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. In our opinion, therefore not much assistance could be sought from the decisions referred on the question of appreciation of evidence. 42. The same view has been reiterated by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 . For ready reference the relevant paragraph is being quoted as under: 47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 43. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 43. Since in the instant case on the basis of discussion made hereinabove it is evident that no prejudice has been caused to the present applicant by alteration in the charge from Sectio 8 to Section 6 of the POCSO Act therefore, the undisputed ratio as laid down by Hon'ble Apex Court in the case of A.R. Antulay v. R.S. Nayak (supra) is not applicable in the facts and circumstances of the present case. 44. So far as the issue of parity in suspending the sentence of co-accused, namely, Bipul Sharma, in Criminal Appeal (DB) No. 1739 of 2023 is concerned, we have considered the said order and found therefrom that therein, the testimony of the victim at para-49 of her examination-in-chief has been taken note of. 45. We have gone through the testimony of victim in entirety and found therefrom that the victim solemnized marriage with Bipul Sharma, the co-convict, which would be evident from paragraph 49 thereof. 46. The co-ordinate Bench, after taking note of this fact, has passed the order of suspension of sentence vide order dated  10.04.2024. 47. But so far as the case of present appellant is concerned, the parity cannot be derived to that of co-convict, Bipul Sharma, who had been admitted by the victim to be her husband, while that is not the case with the present applicant/appellant. 48. Further, even the said Bipul Sharma who has been examined under Section 313 Cr.P.C has also admitted the fact that the victim is her wife. Thus, it is evident that the co- convict and the victim both are admitting the fact of being husband and wife. But so far as the case of present appellant is concerned, the victim has categorically deposed against the appellant that he has subjected him to sexual assault by committing rape. It has also come in the testimony that the victim has been subjected to rape also in the house of the present applicant/appellant. 49. In the aforesaid context this Court is conscious of the principle of parity, which is to be made applicable while granting bail/ suspending sentence. 50. It has also come in the testimony that the victim has been subjected to rape also in the house of the present applicant/appellant. 49. In the aforesaid context this Court is conscious of the principle of parity, which is to be made applicable while granting bail/ suspending sentence. 50. In needs to refer herein that the issue of parity has been dealt by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it has held as under: 18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.” 51. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 wherein it has been held as under: “25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) “17. This Court observed : (SCC p. 515, para 17) “17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history- sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.” 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A- 10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.” 52. It is evident from the proposition laid down in the said cases that the factual aspect governing the case of the culpability said to be committed by one or the other, if found to be exactly the same and having taken into consideration by the concerned Court, then only the principle of parity will be applicable. 53. This Court considering the judgment rendered in the case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (supra) on the issue of applicability of principle of parity, based upon the discussion made herein above, is of the view that the order of suspension of sentence passed in favour of said Bipul Sharma cannot have any aid to the present appellant. 54. The learned counsel for the appellant has further contended that learned trial Court has not considered that version of the victim regarding her age, which is suspicious since at the time of lodging of FIR she has disclosed her age to be 18 years and just after 20 days at the time of recording her statement under Section 164 Cr.P.C, she has disclosed her age to be 15 years. 55. Per contra, the learned counsel for respondent State has contended that admittedly as per medical report, the victim of this case was 19 years old at the time of institution of FIR but it reflects from the prosecution story that the alleged occurrence was occurred firstly in the year 2014 and the same continued till filing of instant FIR thus if the version of defence is taken in true aspect even then it will be presumed that in the year 2014 the victim was below the age of 18 years. 56. 56. This Court in order to appreciate the argument advanced on behalf of the parties primarily with respect to the issue of age which is of paramount consideration in view of the fact that the conviction is under Section 6 of the POCSO Act has gone through the POCSO Act where the primary requirement to prove the commission of offence under Section 6 of the POCSO Act is the juvenility of the victim as per the provision of the POCSO Act wherein child has been defined to be below the age of 18 years as per Section 2(d) of the Act. 57. At this juncture core of Section 34 of the POCSO Act requires to refer herein which reads as under: “(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 1[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)]. (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a personas determined by it under sub-section (2) was not the correct age of that person.” 58. Thus, as per mandate of Section 34 of POCSO Act, the procedure of age determination has been laid down in the Juvenile Justice Act, 2015 (Act 2015) wherein it has been provided under Section 94 for determination of the age. For ready reference, Section 94 of the Act, 2015 is being reproduced as under: 94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 59. Thus, the conjoint reading of both these provisions makes it clear that in case there is any dispute as to the age of the juvenile in the case of a child the Courts have to resort to the procedure prescribed under Section 94 of the Juvenile Justice Act. The Juvenile Justice Act provides that in order to determine the age of the juvenile, the Court has to consider the documents as aforesaid. 60. Thus, while determining the age, the Court has to first take into account the date according to the birth certificate from the school or the matriculation certified or equivalent certificate from the concerned examination Board and in absence of this the Court will consider the birth certificate given by a corporation or a municipal authority or a panchayat. 61. Further as per stipulation made in the Section 94(2) (iii) that in the absence of documents as prescribed in Section 94 (2) (i) and (ii) the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. 62. 61. Further as per stipulation made in the Section 94(2) (iii) that in the absence of documents as prescribed in Section 94 (2) (i) and (ii) the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. 62. This Court, based upon the aforesaid position of law and coming back to the order impugned wherein the testimony of PW-6 Dr Luxmi Kumari has been mentioned, has found that she has deposed in para 1 of her examination in chief that on 13-05-2017 being medical officer of CHC Jugsalai, she examined victim of this case and on her physical, and radiological finding, she assessed the age of victim about 19 years. 63. Further from record it is evident that the same age has been mentioned by PW-6 in her medical report and hence, in the light of the provision contained U/s 94(2)(iii) of the Juvenile Justice Care and Protection of Children Act, 2015, in absence of any type of birth certificates of victim this court has got no option but to rely upon the opinion of medical officer, which is based upon radiological examination with respect to the age of victim. 64. During the course of argument, it was argued by the learned counsel for the appellant/applicant that since the victim was aged about 19 years at the time of institution of FIR hence Penal Provision of POCSO Act is not applicable in this case. 65. It is admitted fact that on 13.05.2017 i.e after one day of institution of FIR victim of this case was clinically and radiologically examined by PW-6 and she assessed her age about 19 years and above, thus in absence of any document the learned trial has got no option but to rely upon the opinion of medical officer regarding the age of victim. 66. Further, the victim in her written report had stated that three years ago from today i.e., since the year 2014, she was subjected to sexual assault and was forced to sexual assault by others. It further appears that the victim has told in para 2 of her examination in chief that the alleged occurrence was occurred in the year 2014. 67. It further appears that the victim has told in para 2 of her examination in chief that the alleged occurrence was occurred in the year 2014. 67. Further at this juncture it needs to refer herein that the Court while considering an application for suspension of sentence and grant of bail, is to consider only the prima facie merits of the appeal. Further it is settled position of law 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, 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 and the principle of bail being the rule and jail an exception is not attracted, if there is conviction upon trial. 68. Reference in this regard may be made to be the Judgment rendered by the Hon'ble Apex Court in the case of Preet Pal Singh vs. State of U.P., (2020) 8 SCC 645 wherein at paragraph 35 of the said judgment it has been held 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. 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." 69. This Court, after having discussed the aforesaid settled position of law and the factual aspects of the instant case and coming to the testimony of the prosecution witnesses including the victim, has found that no prejudice has been caused to the applicant/appellant due to alteration in charge and further the issue of parity is also not available to him therefore, the grounds raised by the learned counsel for the appellant is not acceptable herein. 70. This Court, on the basis of the discussion made hereinabove, is of the view that it is not a fit case where the sentence is to be suspended. 71. Accordingly, the instant Interlocutory Application being I. A. No. 13404 of 2024 is hereby dismissed. 72. 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. Sanjay Prasad, J. - I Agree