The prosecution must prove the victim's age in cases involving sexual offences; failure to do so can lead to suspension of sentence.

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. Pratik Barot, learned advocate and Mr. Trupesh Kathiriya, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant Pareshbhai Vitthalbhai Harijan, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366 of the Indian Penal Code and Sections 6 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 05.04.2022 and order of sentence passed in Special Case (POCSO) No.15 of 2020, 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 date of the FIR, the applicant and the victim aged about 17 years and more were in relationship and decided to marry each other, but the family members of both the sides raised their grievances and that is why, the relationship could not be converted into marriage. The victim and accused on 15.02.2020, left their respective house and remained in the company of each other till 02.03.2020 and between the said period, they maintained physical relationship. In these circumstances, the grandfather of the victim lodged an FIR. The police arrested the applicant and at the end of the investigation, the chargesheet came to be filed. He was tried by the Sessions Court and the learned Court-below held guilty the applicant mainly on the ground that she was minor at the relevant time.

6. Learned advocate Mr. Pratik Barot, 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 the victim at the relevant time, at the verge of completion of 18 years and therefore, when age is not proved, the learned Court-below could not have convicted the accused. In such circumstances, Mr. Barot prays that there are fair chances of appeal being allowed and therefore, it is submitted that the case may be considered for suspension of sentence and grant of bail.

7. On the other hand, Mr. Trupesh Kathiriya, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the issue of age as raised herein cannot be appreciated at this stage and therefore, no any exceptional circumstances exists for granting discretionary relief.

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. In the case on hand, the Court-below relied upon the school records for determination of the age. It is no doubt true that the birth certificate has not been produced by the prosecution. We are of the prima facie view that the prosecution miserably failed to prove the source of date of birth and on what basis, the school authority recorded date of birth. In such circumstances, considering the peculiar facts and circumstances of present case, more particularly conduct of the victim who remained in the company of the accused for considerable time, 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 aforesaid extent. The s