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.

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.S.D. Mansuri, learned advocate and Mr.Meet Thakkar, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Samshad Alauddin Ansari, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376 of the Indian Penal Code and Section 4 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 02.01.2019 and order of sentence passed in POCSO Case No. 128 of 2015, 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 belong to minority community. According to the case of the prosecution, the victim was sexually abused and was taken at the place mentioned in the papers where the accused committed a rape upon her. Pursuant to the FIR, the accused was arrested and chargesheeted. At the end of trial, relying on the school records, the Court below on the issue of age held that the victim was minor and accordingly, the accused was found guilty.

6. Learned advocate Mr.S.D. Mansuri, appearing on behalf of the applicant while praying for suspension of sentence contended that the incarceration is more than 12 years and till date, there are no chances of appeal being heard in near future. It is the case of love affair and considering the caste of both the parties, and protest by the family of the victim, the false case was registered. The birth date mentioned in the school leaving certificate has not been proved in accordance with Section 35 of the Evidence Act. In such circumstances, he prayed that the case may be considered for suspension of sentence and grant of bail.

7. On the other hand, Mr.Meet Thakkar, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the charge proved is serious one and therefore, merely a long incarceration would not be ground to entertain this application.

8. 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. The age of the victim has been blindly relied upon by the Court below and its probative value has not been properly evaluated by the Court. The period of incarceration is more than 12 years and possibility of appeal being heard in near future is bleak. In such circumstances, 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 02.01.2019 by the learned Additional Sessions Judge, City Session Court, Ahmedabad City, in POCSO Case No. 128 of 2015 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.