JUDGMENT :

B.N. Karia, J.

ORDER IN CRIMINAL APPEAL NO. 411 of 2022

1. By preferring this appeal, appellant has requested to quash and set aside the judgment and order sentencing the applicant vide order dated 01.02.2022 passed in POCSO Case No. 39 of 2020 by learned Special POCSO Judge, Court No. 21, City Civil & Sessions Court, Ahmedabad and requested to acquit him from the charges levelled against him.

2. Heard learned advocate for the appellant and learned APP for the respondent-State.

3. Learned advocate for the appellant submits that the judgment and order of conviction and sentence passed by the learned Judge is contrary to law, against the provisions of statute and against the evidence on record. That, there are considerable numbers of discrepancies in the testimonies of the prosecution witnesses through which it can be said that the case of prosecution cannot be relied upon. That, the complainant P.W. 1 is not an eye witness and in his deposition, he stated that on previous occasion the appellant had teased his daughter regarding which the settlement had taken place in police station and complaint was not filed while the same is not disclosed in the FIR. That, the victim girl PW. 2 in her deposition stated that on the second floor she had gone for the clothes whereas, in the statement of the complainant, it is stated on the 3rd floor. That, the victim girl also stated in her cross-examination that she used to talk with the appellant through the mobile phone of her mother and the number was given by her when he used to come to tuition. That, the victim girl also stated in her cross-examination that she did not say about hue and cry in her statement recorded before the police authority and she never told her parents about the threats given by the appellant to her if she does not meet. That, PW No. 3 i.e. Akshaybhai Shashikantbhai Dabgar is no independent witness and is in relation to the complainant and thus the same becomes irrelevant and is a hearsay evidence. That, the deposition and cross examination of P.W. 4 Mukeshkumar Dinandra Joshi is important as in the cross-examination he states that the entry in the register is done as per say of one Navinbhai Ambalal Dangar and the same was not verified by him and he has denied his signature in the same and thus, the birth date of the victim is also creates doubtful. That, the mother of the victim girl is not examined.

4. Issue requires consideration.

5. ADMIT. Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

ORDER IN CRIMINAL MISC. APPLICATION NO. 1 of 2022

6. Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

7. This application is filed by the applicant praying for suspension of sentence vide judgment and order dated 01.02.2022 passed in POCSO Case No. 39 of 2020 by learned Special POCSO Judge, Court No. 21, City Civil & Sessions Court, Ahmedabad and also requested to enlarge the applicant on bail till the hearing and final disposal of the captioned Criminal Appeal.

8. Learned advocate for the appellant submits that the judgment and order of conviction and sentence passed by the learned Judge is contrary to law, against the provisions of statute and against the evidence on record. That, there are considerable numbers of discrepancies in the testimonies of the prosecution witnesses through which it can be said that the case of prosecution cannot be relied upon. That, the complainant P.W. 1 is not an eye witness and in his deposition, he stated that on previous occasion the appellant had teased his daughter regarding which the settlement had taken place in police station and complaint was not filed while the same is not disclosed in the FIR. That, the victim girl PW. 2 in her deposition stated that on the second floor she had gone for the clothes whereas, in the statement of the complainant, it is stated on the 3rd floor. That, the victim girl also stated in her cross-examination that she used to