The court may suspend a sentence if the applicant demonstrates a compelling case, particularly considering the nature of the relationship and circumstances surrounding the case.

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. We have heard Mr.R.D. Jadhav, Mr.Devendra Rana, and Mr.Krutik Parikh, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Surajbhai Sitaram Maane, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 376(2)(J)(N) and 376(3) of the Indian Penal Code and Sections 3(A), 4, 7, 8 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 24.07.2024 and order of sentence passed in Special (POCSO) Case No.138 of 2022, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that prior to the registration of the FIR i.e. 20.04.2022, the minor victim and the applicant were in relations, as a result of which, they maintained physical relationship under the guise of promise to marry. The victim got pregnant and on that basis, the parents came to know about the relationship which resulted into prosecution. At the end of investigation, the accused was chargesheeted. He was put on trial. The Court below on the issue of age observed that the victim was minor at the relevant time and on appreciation of the evidence, he was found guilty.

6. Learned advocate Mr.R.D. Jadhav, 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 prosecution miserably failed to prove that the victim was under 18 years. That till date, the applicant accused, who was unmarried at the relevant time, is ready to marry with the victim as there was a genuine relationship. In support of this contention, learned counsel Mr.Jadhav tendered the afÏdavit of the accused, containing therein, willingness on his part to marry with the victim. In such circumstances, it is submitted that due to opposition on the part of the complainant party, the marriage could not put in reality and therefore, when there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant.

7. On the other hand, Mr. Krutik Parikh, learned Additional Public Prosecutor and Mr.Devendra Rana, learned advocate have supported the impugned judgment and order of conviction as passed by the trial Court and contended that the family of the victim is not interested to tide the note with the accused and therefore, the marriage is not possible. They would further urge that the Court below has rightly believed that the victim was minor at the relevant time and therefore, there is no ground exists to exercise discretionary relief and the application may not be entertained.

8. Having regard to the facts and circumstances of the case, the issue arises 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. It is no doubt true that before the registration of the offence, the victim was in relations with the accused. The accused was ready to marry with her and today also, he is ready to keep his promise. In such circumstances, considering the issue of age and the manner in which, the relation maintained by the parties, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. Accordingly, present application is allowed. Rule is made absolute to a