The significance of delay in filing the FIR, contradictions in witness testimonies, and sufficiency of medical evidence in influencing the court's decision on suspension of sentence and bail.

ORDER :

ORDER IN CRIMINAL APPEAL NO. 709 OF 2022

1. By preferring this appeal, appellants have requested to quash and set aside the judgement and order dated 21.3.2021 passed in Special (POCSO) Case No. 58 of 2021 by learned Additional Sessions Judge & Special POCSO Judge, Kheda at Nadiad and requested to acquit the appellants from the charges levelled against them.

2. Heard learned advocate for the appellants.

3. Learned advocate for the appellants submits that the complainant comes with the false and fabricated story after 45 days from the alleged offence, as the offence was committed on 20.5.2021 and FIR was registered on 3.7.2021, without any proper explanations about the delay. That, learned Sessions Judge ought to have considered all the disputes and defenses raised by accused during the cross examination more particularly, contradiction came on record during the oral deposition of material witness like victim, particularly in this case learned Sessions Judge has not considered such all the material defense as well as contradiction came on record from the cross examination of complainant and victim. That, the medical evidence produced on record are also not sufficient to establish all the charges levelled against present appellants even though learned Sessions Court has wrongly relied upon it.

4. Issue requires consideration.

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

ORDER IN CRIMINAL MISC.APPLICATION NO. 1 of 2022

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

2. This application is filed by the applicants praying for suspension of sentence vide judgement and order dated 21.3.2021 passed in Special (POCSO) Case No. 58 of 2021 by learned Additional Sessions Judge & Special POCSO Judge, Kheda at Nadiad and also requested to enlarge the applicants on bail till the hearing and final disposal of the captioned Criminal Appeal.

3. Learned advocate for the applicants submits that that the complainant comes with the false and fabricated story after 45 days from the alleged offence, as the offence was committed on 20.5.2021 and FIR was registered on 3.7.2021, without any proper explanations about the delay. That, learned Sessions Judge ought to have considered all the disputes and defenses raised by accused during the cross examination more particularly, contradiction came on record during the oral deposition of material witness like victim, particularly in this case learned Sessions Judge has not considered such all the material defense as well as contradiction came on record from the cross examination of complainant and victim. That, the medical evidence produced on record are also not sufficient to establish all the charges levelled against present appellants even though learned Sessions Court has wrongly relied upon it. That, the applicants were released on bail during the pendency of trial and they have not misused liberty granted to them. That, hearing of the Criminal Appeal will take long time and till then, judicial custody of the applicants would not be required. As per submissions made by learned advocate for the applicants that time to surrender by the applicants before the jail authorities is going to be over on 19th April, 2022. Therefore, it was requested by learned advocate for the applicants to enlarge the applicants on bail till the hearing and final disposal of the captioned Criminal Appeal.

4. Learned APP for the respondent -State has strongly objected the submissions made by learned advocate for the applicants and submitted that trial Court has rightly convicted the present applicant as he has been involved in the serious offence and requested this Court to dismiss the present application.

5. Having heard learned advocate for the applicants as well as learned APP for the respondent State, particularly the deposition of victim and her cross-examination, she has admitted all the defence put to her in her cross-ex