The court ruled that insufficient proof of the victim's age justified the suspension of the applicant's sentence under IPC and POCSO Act.

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 Mohsin Rahimbhai Makwana, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376(3) of the Indian Penal Code and Section 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 03.04.2024 and order of sentence passed in Special POCSO Case No. 18 of 2019, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that the minor victim left her home voluntarily and remained in the company of the accused applicant and they stayed together at different places and maintained physical relationship. The parties belonged to minority community. Pursuant to the FIR, the applicant accused was apprehended 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. J. L. Hajare, 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 date of birth mentioned in the birth certificate has not been proved in terms of Section 35 of the Evidence Act. The victim was in love with the applicant but somehow the relationship could not converted into marriage. The accused at relevant time was unmarried and therefore, when age is not proved, the victim deemed to be major at the time of incident and in that case, the trial Court could not have convicted the applicant. In such circumstances, he prayed that case may be considered.

6. On the other hand, Ms. Krina Calla, 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, no ground exists and therefore, court may not entertain this application.

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 the parties belonged to minority community. The birth certificate has been directly exhibited. The learned trial Court failed to appreciate the fact that under what circumstances the date of birth was recorded in the records of the authority, who had registered the entry. In such circumstances, when applicant was throughout on bail and considering the issue of age, without much discussion on merits of the case, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 03.04.2024 by the learned Special Judge (POCSO) & 9th Additional Sessions Judge, Rajkot in Special POCSO Case No. 18 of 2019 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the sa