IMPORTANT POINT
Execution of order of sentence can be suspended till final disposal of Criminal Appeal where facts and circumstances of case so warrant.

ORDER

Ms. Bela M. Trivedi, J.—Heard learned Advocates for the parties.

2. Rule. Learned APP Ms. C. M. Shah waives service of notice of Rule on behalf of Respondent-State.

3. Present application has been filed by the applicant- convict seeking suspension of his sentence under section 389 of the Code of Criminal Procedure, 1973 in connection with the judgment and order dated 19.02.2020 passed by the Special Judge and 2nd Additional Sessions Judge, Dahod (hereinafter referred to as ‘the Special Court’) in Special (POCSO) Case No.55 of 2016, whereby the applicant-convict has been convicted for the offences punishable under sections 376(N) of the IPC and under sections 3 and 4 of the Protection of Children from Sexual Offcenes Act, 2012 (hereinafter referred to as ‘the said Act’) and has been sentenced to undergo rigorous imprisonment for a period of 10 years for the offence under section 376(N) of the IPC and to pay fine of Rs.5,000/-, in default thereto to undergo further imprisonment for a period of one year and undergo rigorous imprisonment for a period of 7 years for the offences under sections 3 and 4 of the said Act and to pay fine of Rs.2,000/-, in default thereto to undergo further imprisonment for a period of six months.

4. That the complainant- Samsubhai Lalabhai Meda, father of the victim had lodged a complaint on 06.05.2016 before the Dahod Rural police station, Dahod, inter alia alleging that his daughter aged about 17 years and 11 months was not found on the cot during night and had not returned back till morning as on 26.04.2016. Thereafter, he had come to know that the accused - Anandbhai Manshukhbhai Hathila had forcibly taken his daughter with him. The said complaint was registered as C.R. No.I-72/2016 at Dahod Rural police station, Dahod for the offences punishable under sections 363, 366, 376, 376(N) of the IPC and under sections 3, 4 and 5 (a)(j)(ii) of the said Act.

5. The chargesheet was filed before the Special Court where the case was registered as Special (POCSO) Case No.55/2016. The Special Court after appreciating the evidences on record has convicted the applicant-convict as stated hereinabove. Being aggrieved by the said judgment and order of conviction, the applicant- convict had preferred an Criminal Appeal being No.471/2020, which has been admitted by the Coordinate Bench vide order dated 17.03.2020. Pending the said appeal, the applicant-convict has preferred present application seeking suspension of sentence.

6. Learned Advocate Mr. Pratik Barot for the applicant-convict taking the court to the evidence adduced by the prosecution before the Special Court, more particularly, the deposition of the victim herself, her statement before the Judicial Magistrate under section 164 of the Code of Criminal Procedure and the history recorded by the Medical Officer as given by the victim herself, submitted that the victim had voluntarily accompanied the accused with whom she had an affair and she herself had left the house of the complainant. He further submitted that the victim in her statement before the police had also admitted that she had a love affair with the applicant-convict and she had voluntarily accompanied him and left the house of complainant. According to Mr.Barot, there was no cogent evidence as regards the age of the victim and even otherwise, she was aged about 18 years at the time of occurrence of incident in question.

7. Learned APP Ms. C. M. Shah appearing on behalf of the Respondent-State has opposed the present application by submitting that as per the school leaving certificate, the age of the victim was 17 years and 11 months and therefore, technically she was below 18 years and therefore, he consent was of no significance. She also submitted that considering the medical evidence and seriousness of the offences for which the applicant is convicted, the sentence of the applicant may not be suspended.

8. Having regard to the submissions made by the learned advocates for the pa