The court determined that the lack of conclusive evidence regarding the victim's age justified the suspension of the applicant's 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. By way of this application under Section 430(1) of BNSS, 2023, the applicant Manubhai @ Manoj Harsurbhai Charan, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376(2)(N), 376(3), 506 and 114 of the Indian Penal Code and Sections 4, 6, 12 and 17 of Protection of Children From Sexual Offences Act.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 08.05.2024 and order of sentence passed in Special POCSO Case No. 22 of 2022, 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 minor victim and the applicant accused, prior to six months of the FIR were in relationship and at the instance of the victim, they stayed together for a considerable time and during their stay, the physical relationship was maintained. 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. 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 age has not been determined in terms of Section 35 of the Evidence Act and evidence of school record without date of source of birth cannot be treated as conclusive so far as age is concerned and therefore, when the applicant accused was unmarried and they stayed together for a long time, there is fair chances of appeal being allowed and in that view of the matter, the case for suspension of sentence and grant of bail may be considered.

6. 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, if released on bail, no case is made out.

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. In the case on hand, while determining the age, the learned trial Court believed the school records. In our opinion, the prosecution failed to place on record the source of date of birth and therefore, prima-facie, the findings of determining the age cannot be said to be in accordance with law. In that view of the matter, 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 08.05.2024 by the learned Special Judge (POCSO) & 3rd Additional Sessions Judge, Panchmahal, Godhra, in Special POCSO Case No. 22 of 2022 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 satisfaction of the trial Court subject to condition that he will not leave India without pr