IMPORTANT POINT
Suspension of sentence for fixed-term convictions should be granted liberally, barring exceptional circumstances, emphasizing the necessity of the victim's testimony in sexual offense cases.

JUDGMENT/ORDER

1. The above Criminal Application is filed seeking suspension of sentence as well as for releasing the Applicant-Appellant on bail.

2. The above Criminal Appeal challenge the orders dtd. 1/2/2023 and 8/2/2023 convicting and sentencing the Applicant-Appellant. The Applicant-Appellant has been convicted under; (a) Sec. 363 of the IPC and is sentenced to three years rigorous imprisonment and to pay a fine of Rs.50,000.00, in default to undergo one month rigorous imprisonment; (b) Sec. 4 of the POCSO Act and is sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1.00 lakh, in default to undergo two months rigorous imprisonment; (c) Sec. 8 of the POCSO Act and is sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.50,000.00, in default to undergo one month rigorous imprisonment; and (d) Sec. 12 of the POCSO Act and is sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.50,000.00, in default to undergo one month rigorous imprisonment. The sentences are to run concurrently. The above Appeal is admitted by this Court by a separate order passed today.

3. On the issue of suspension of sentence and releasing the Applicant-Appellant on bail, I have heard the learned Counsel appearing on behalf of the Applicant-Appellant as well as the learned Public Prosecutor appearing on behalf of the State. It is not in dispute that the Applicant-Appellant was out on bail during the entire period of the trial and has been incarcerated on the date on which the sentence was passed [namely, on 8/2/2023]. In the facts of this case, the victim, who was approximately 17 years of age at the time when the incident is said to have taken place, has not been examined at all by the Prosecution. It appears prima facie that the Applicant-Appellant has been convicted and sentenced on the basis of documentary evidence such as medical examination of the accused and the victim and the medical examination report of the victim, which was produced by the Prosecution under Sec. 294 of the Cr.P.C. The medical report of the victim indicates that on physical and gynaecological examination, there is evidence of old healed tears involving the entire length of the hymnal mucosa at 4 o'clock, 6 o'clock and 11 o'clock position. As per the victim, the intercourse was on 31/3/2019 and which is recorded in the medical examination report. The victim has not been examined at all by the Prosecution where she says that there was any intercourse between her and the Applicant-Appellant. This is the only evidence on the basis of which the Applicant-Appellant has been convicted and sentenced under the provisions of the IPC as well as the POCSO Act and as mentioned above.

4. On going through the impugned judgment, I find that an arguable case is made out. At this stage, I do not want to comment on the merits of the judgment as that is something what will be examined at the final hearing of the Criminal Appeal. Considering the facts and circumstances of the case and after going through the impugned judgment, I am satisfied that the substantive sentence imposed upon the Applicant-Appellant by the Trial Court needs to be suspended and the Applicant-Appellant be released on bail.

5. I have also taken this view in the light of the decision of the Hon'ble Supreme Court in the case of Bhagwam Rama Shinde Gosai & Others Vs. State of Gujarat [(1999) 4 SCC 421] wherein the Hon'ble Supreme Court has clearly opined that when the convicted person is sentenced to a 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. The Hon'ble Supreme Court has further clarified that if there is any statutory restriction against the suspension of sentence, it is a different matter. In other words, what the Hon'ble Supreme Court has opined is that when the sentence is for a fixed period, the su