The court may suspend a sentence if the incarceration period is significant and the likelihood of an appeal being heard is remote.

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 Dashrathsinh Bhavansinh @ Bhavsinh Jhala, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 376(3) of the Indian Penal Code and Sections 4 & 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 19.09.2022 and order of sentence passed in Special POCSO Case No. 14 of 2020, 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 prior to the incident, minor victim and accused were knowing each other and due to their relations, the physical relationship had been maintained. Pursuant to the FIR dated 30.12.2019, applicant accused was apprehended and at the end of investigation, chargesheet came to be filed against him as well as the abettor Vijaysinh Kedarji. They were tried by the court of Sessions. The learned Sessions Court, after appreciation of evidence, held guilty the applicant accused for the offences as recorded above and acquitted the abettor.

5. Learned advocate Mr. S. S. Khan, appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is 5 years and in near future, there is no possibility of appeal being taken up for hearing. That, this is a case of love affairs and due to social reason, the victim did not have support the accused and that is why, he has been convicted.

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 victim was minor and therefore, the plea with regard to false implication may not be entertained at this stage.

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. The victim and accused got acquaintance and they belonged to same village. The incarceration period is about 5 years and there is a remote possibility of appeal being taken up for final hearing. 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 19.09.2022 by the learned Special Judge (POCSO), Gandhinagar in Special POCSO Case No. 14 of 2020 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. Direct service permitted.