JUDGMENT :

B.N. Karia, J.

ORAL ORDER IN CR. A. 313 of 2022

1. By way of present appeal, the present appellant has challenged the judgment and order dated 20.01.2022 passed by the learned Special (POCSO Court), 5th Additional Fast Track Court, Surat in Special Case (POCSO) No. 187 of 2018, wherein the appellant was charged for the offence punishable under Sections 354(A)1-(i)(ii), 354(c), 354(D)(1)(i) and 506 of the Indian Penal Code and Sections 11(1)(2) and 12 of the Protection of Children from Sexual Offences Act, 2012 and the appellant has been tried for the said offence and at the conclusion of the trial, the learned Special (POCSO Court) convicted the appellant for three years regular imprisonment.

2. Heard leaned advocate for the appellant.

3. It is submitted by learned advocate for the appellant that the FIR is late by 11/12 days and an FIR was registered by the father of the prosecutrix against the appellant regarding some scuffle. It is further submitted that in furtherance of that scuffle, the present FIR was registered and there are no independent witnesses. It is further submitted that the locality is densely populated and the prosecution could have easily examined any independent witness and the alleged incident occurred in an apartment having 3 apartments on the same floor. It is further submitted that as per the prosecution case, one chit was given to the prosecutrix containing a phone number of the accused, however, no chit was ever produced during the trial. It is further submitted that there was no panchnama of the spot of incidence.

4. Issue requires consideration.

5. Admit. Learned APP waives service of admission for and on behalf of the respondent-State.

ORAL ORDER IN CR.M.A. 1 of 2022

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

7. By preferring present application, applicant has prayed for the following relief(s):

"(A) YOUR LORDSHIPS be pleased to allow this application in the interest of justice.

(B) YOUR LORDSHIPS be pleased to allow this application by enlarging the applicant on bail or suspend the sentence pending criminal appeal against the impugned judgment/order passed by the Ld. Special (POCSO Court), 5th Additional Fast Track Court, Surat, Special Case (POCSO) No. 187/2018 dated 20.01.2022 on appropriate terms and conditions in the interest of justice.

(C) YOUR LORDSHIPS be pleased to pending, admission, and hearing and till final disposal of the present Criminal Appeal this Hon'ble Court be pleased to enlarge the appellant on Bail/sentence may be suspended in the interest of justice.

(D) YOUR LORDSHIPS be pleased to grant such other and further relief(s) as deemed fit in the interest of justice."

8. Heard learned advocate for the applicant and learned APP for the respondent-State.

9. It is submitted by learned advocate for the applicant that the FIR is late by 11/12 days and an FIR was registered by the father of the prosecutrix against the applicant regarding some scuffle. It is further submitted that in furtherance of that scuffle, the present FIR was registered and there are no independent witnesses. It is further submitted that the locality is densely populated and the prosecution could have easily examined any independent witness and the alleged incident occurred in an apartment having 3 apartments on the same floor. It is further submitted that as per the prosecution case, one chit was given to the prosecutrix containing a phone number of the accused, however, no chit was ever produced during the trial. It is further submitted that there was no panchnama of the spot of incidence. It is further submitted that the applicant has all chances of succeeding in appeal and looking to the pendency of appeal and backlog of cases, this appeal is not likely to be taken up for hearing in near future and hence, just because of this reason, the applicant, who has strong prima facie case on merits, may not suffer behind the bars and hence, sentence be suspended durin