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HIGH COURT OF GUJARAT
ILESH J. VORA, HEMANT M. PRACHCHHAK, JJ
MOHSIN RAHIMBHAI MAKWANA – Appellant
Versus
STATE OF GUJARAT – Respondent
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:
| Section | Imprisonment | Fine | In default |
| S.363 of IPC | RI for 3 yrs | 2000 | SI for 1 month |
| S. 366 | RI for 5 yrs | 10000 | SI for 2 months |
| S.376 (3) | RI for Life | 20000 | SI for 6 months |
| S.6 of POCSO | RI for Life | 20,000 | SI for 6 months |
| S.8 & 12 of POCSO | RI for 3 yrs | 1000 | SI for 1 month |
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
The court ruled that insufficient proof of the victim's age justified the suspension of the applicant's sentence under IPC and POCSO Act.
The court determined that the lack of conclusive evidence regarding the victim's age justified the suspension of the applicant's sentence.
The court may suspend a sentence if doubts arise regarding the conviction, particularly concerning the proof of the victim's age and the validity of consent.
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.
The prosecution must prove the victim's age in cases involving sexual offences; failure to do so can lead to suspension of sentence.
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.
The court has discretion to suspend a sentence if the applicant demonstrates a case for it, considering the peculiar facts of the case.
The court may suspend a sentence if the applicant demonstrates a case for it, particularly considering the length of incarceration and the adequacy of evidence regarding the victim's age.
The court ruled that the prosecution's failure to prove the victim's age undermined the conviction, leading to the suspension of the applicant's sentence.
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