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.

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 Kalpesh Tolsing Meda, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376(2)(N) 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 05.08.2022 and order of sentence passed in Special POCSO Case No. 13 of 2021, 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 was remained in the company of the accused for about 3 months and more. On 13.01.2021, she was at the house of her sister. The accused is the brother in law of the sister of the victim. They fell in love. On account of the relations, the victim and the applicant accused decided to live as husband and wife and lived together for about 3 months and more. The father of the victim lodged an FIR on 22.01.2021 and pursuant to said FIR, the police had arrested the accused. In the aforesaid the chargesheet came to be filed against the applicant and he was put on trial. The Court below found that the victim was minor and on relying on her evidence, the accused found guilty as indicated above.

5. Learned advocate Mr. B. D. Hajare, appearing on behalf of the applicant while praying for suspension of sentence contended that, the age has not been proved in terms of Section 35 of the Evidence Act. The parties are tribal and according to their custom, they lived together as husband and wife for about 3 to 4 months and therefore, when the FIR is filed with oblique motive, the case can be considered for suspension of sentence.

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 prosecution proved the age of the victim and in that view of the matter, her consent is no consent in eye of law. Thus, having regard to the facts and evidence on record, the Court may not exercise the discretion.

7. 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 facts of the present case, the parties are tribal and lived together for 3 to 4 months as husband and wife. So far age part is concerned, the age mentioned in the birth certificate has not been proved by examining the registering authority. The victim in her 164 statement did not have disclosed the factum of sexual abuse. In such circumstances, 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 05.08.2022 by the learned Additional Sessions Judge, Gondal in Special POCSO Case No. 13 of 2021 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 prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court.