The court has discretion to suspend a sentence if the applicant demonstrates a case for it, considering the peculiar facts of the case.

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.Vaibhav Sheth, learned advocate and Mr.Jay Metha, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita , 2023, applicant – Jayendra S/o. Sureshbhai Parmar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 376(2)(N) of the Indian Penal Code and Sections 4, 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 18.09.2024 and order of sentence passed in Special POCSO Case No.241 of 2021, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that the minor victim and the applicant accused are deaf and dumb and through social media, they came into contact with each other, as a result of which, on 29.08.2021, she left the house and went to the house of the applicant’s accused and on the next day, she came back to her house and according to the case of the prosecution, on that day, the physical relationship was being maintained by the accused with the victim. On the aforesaid premise, the mother of the victim lodged an FIR which led to the arrest of the accused and filing of the chargesheet. He was put on trial. The Sessions Court, on the basis of available evidence, came to a conclusion that the victim was minor and accepting the version of the victim, convicted and sentenced the accused as indicated above.

6. Learned advocate Mr.Vaibhav Sheth, 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 victim at the relevant time was mature and at the verge of 18 years. That the initially, the factum of sexual abuse was not disclosed and later on, the same was disclosed after a long time. In such circumstances, considering the peculiar facts and circumstances of present case, the case may be considered.

7. 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 contented that the the victim was minor and there are sufficient evidence against the accused for sexual abuse and therefore, the Court may not exercise discretion.

8. 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. Admittedly, the victim has crossed the 17 years old and at the relevant time, she along with the accused were deaf and dumb. Initially, no allegation of sexual abuse was disclosed but somehow, it has been disclosed later on. Considering the peculiar facts and circumstances of present case, 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 sentence of the applicant awarded vide judgment dated 18.09.2024 by the learned Special Judge (POCSO) & City Sessions Court No.9, Ahmedabad City in Special POCSO Case No.241 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 befor