VIRUPAKSHA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This I.A.No.1/2019 is filed under Section 389 of Cr.P.C praying to suspend the order of sentence dated 17.10.2019 passed in S.C.No.350/2017 on the file of the Hon'ble VI Additional District and Special Judge, Mysuru in which he has been convicted and sentenced for the offences under Sections 451, 376(2)(ii) and (n) of Indian Penal Code and under Section 5(J)(ii)(1) r/w Section 6 of POCSO Act.

(2.) I have heard the learned Senior counsel Sri.Hashmath Pasha appearing for the appellant-accused and Sri.Vijayakumar Majage, learned Additional SPP for respondent-State.

(3.) It is the submission of the learned Senior counsel for the appellant that the appellant-accused is innocent and there was a love affair between the accused and the victim. Still the pregnancy becomes advance stage, the same was not disclosed by the victim to any member of the family. It is his main argument that the determination of the age is the crucial aspect. Though Ex.P13 is issued by the Head Master PW2, it was given in the form of a letter and it is hit by Section 162(4) of Cr.P.C. Neither the Transfer Certificate nor the SSLC Marks Card has been produced to substantiate the age of the victim girl. Not proving the age beyond reasonable doubt at the time of alleged incident, then under such circumstances the question of rape does not arise, it may be a consensual intercourse. So the benefit of doubt should be given to the accused. Exact age of the victim has to be determined and proved by the prosecution in accordance with law. In the absence of such material the accused is entitled for suspension of sentence.