The court suspended the applicant's sentence due to the lack of confidence in the victim's testimony and the backlog of pending appeals.

ORDER :

ILESH J. VORA, J.

1. After arguing sometime, learned advocate Mr. Jucky Lucky Chan for the applicants does not press this application qua applicant no. 2. Present application stands disposed of as not press qua applicant no. 2. Notice is discharged.

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

3. By way of this application under Section 430(1) of BNSS, 2023, the applicant No. 1 – Sukhabhai Lavjibhai Parmar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offencepunishable under Sections 376(2)(N) of the Indian Penal Code and Sections 4, 5(L), 8, 12 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 31.08.2024 and order of sentence passed in POCSO Case No. 27 of 2022, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file appeal as well as this application are that minor victim due to family dispute with her mother left her home on 15.03.2022 and went to village : Sarsai, where, she stayed with accused no.1 Sukhabhai Lavjibhai till 11.04.2022. It is the case of the prosecution that during the stay of the victim with Sukhabhai Lavjibhai, they maintained physical relationship. The victim was also sexually abused by accused no. 2 Sajan @ Kabo Nanubhai, who happened to be her cousin brother. In such circumstances, the FIR came to be filed against both the accused and finally they were chargesheeted for the offences enumerated above. The learned Sessions Court, after appreciation of evidence, held guilty the both the accused as recorded above.

6. Learned advocate Mr. J. L. Chan, 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 testimony of the victim does not inspire any confidence and her evidence without corroboration would not be acceptable and believable. In such circumstances, he prays that, the applicant has been falsely implicated and same has not been appreciated by the trial Court. Thus, when there is no possibility of being heard the appeal in near future and considering the fair chances of allowing the appeal, the prayer may be considered.

7. 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, Court may not entertain the application.

8. 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?

9. We have carefully examined the case records and considered the submissions made at the bar. In the case on hand, the victim in her first police statement, did not have alleged about sexual abuse allegedly committed by the accused. So far as present applicant no. 1 is concerned, the victim on 12.04.2022, given a clean chit to him by saying that during her stay with him, she was not sexually abused or harassed by him. In such circumstances, without much discussion on merits of the case, considering the peculiar facts and circumstances of the present case and evidence on record, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. 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