Suspension of sentence granted in light of the applicant's prior relationship with the victim and backlog of appeals, balancing the gravity of the offences with the rights of the accused.

ORDER :

ILESH J. VORA, J.

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Jignesh @ Sunilbhai Govindbhai Parmar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376 of the Indian Penal Code and Sections 4 & 6 of Protection of Children From Sexual Offences Act.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 07.12.2021 and order of sentence passed in Special POCSO Case No. 16 of 2020, whereby, the applicant herein was convicted and sentenced as under:

So far as offence under the provisions of Section 376 of IPC and Section 4 of POCSO Act are concerned, no separate sentence has been awarded by the trial Court.

4. Facts and circumstances giving rise to file appeal as well as this application are that on 10.02.2020, the minor victim aged about 17 years and above, left her home and remained in the company of applicant accused for about one month as husband and wife and they maintained the physical relationship. The prior to the incident, the victim and applicant, were in relations and due to their relations, the victim ran away with the applicant. The mother of the victim lodged an FIR and at the end of investigation, chargesheet came to be filed against him. He was tried by the Sessions Court. The learned Sessions Court, after appreciation of evidence, held guilty the applicant accused for the offences as recorded above.

5. Learned advocate Mr. P. V. Patadiya, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the age of the victim has not been properly determined and considering the nature of relations, the learned trial Court could not have been convicted the applicant. In such circumstances, it is submitted that the case may be considered for suspension of sentence and grant of bail.

6. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the learned trial Court has rightly relied on the evidence of the age and therefore, considering the gravity of offence and its impact on the society, if released on bail, no case is made out.

7. Having regard to the facts and circumstances of the case, the issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. It is no doubt true that prior to date of FIR, the victim and applicant were knowing each other and thereafter, they decided to live together as husband and wife. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

9. Having considered the peculiar facts and circumstances of the present case and considering the backlog of the appeals pending before this Court, the chance of appeal being heard in near future is extremely remote, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant and to enlarge him on bail pending Criminal Appeal.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 07.12.2021 by the learned Special Judge (POCSO) & 2nd Additional Sessions Judge, Anand in Special POCSO Case No. 16 of 2020 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal