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HIGH COURT OF GUJARAT
IJV, SNB
ALTAF SALIMBHAI THEBA – Appellant
Versus
STATE OF GUJARAT – Respondent
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 Altaf Salimbhai Theba, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 366, 376 of the Indian Penal Code and Sections 6, 8 and 12 of Protection of Children From Sexual Offences Act.
3. The present appeal and the application for suspension of sentence arise from the judgment dated 24.09.2024 and order of sentence passed in Special POCSO Case No. 36 of 2021, whereby, the applicant herein was convicted and sentenced as under:
| Section | Imprisonment | Fine | In default |
| S.366 of IPC | RI for 2 yrs | 1000 | SI for 30 days |
| S.376 | RI for 10 Yrs | 7000 | RI for 6 months |
| S.6 of POCSO | RI for 20 yrs | 2000 | SI for 30 days |
| S.8 of POCSO | SI for 3 yrs | 1000 | SI for 30 days |
| S.12 of POCSO | SI for 3 yrs | 1000 | SI for 30 days |
4. Facts and circumstances giving rise to file appeal as well as this application are that on 25.06.2021, the victim left her home and remained with applicant accused for a considerable time. At relevant time, she was married but due to reasons relat
The court suspended the sentence based on the lack of proof regarding the victim's age and the unique circumstances of her relationship with the accused.
The court ruled that the prosecution's failure to prove the victim's age undermined the conviction, leading to the suspension of the applicant's sentence.
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.
The court may suspend sentences based on the age and health of the accused, especially when incarceration has been prolonged and appeals are unlikely to be heard soon.
The court may suspend a sentence if the incarceration period is significant and the likelihood of an appeal being heard is remote.
The court determined that the lack of conclusive evidence regarding the victim's age justified the suspension of the applicant's sentence.
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.
The court ruled that insufficient proof of the victim's age justified the suspension of the applicant's sentence under IPC and POCSO Act.
The prosecution must prove the victim's age in cases involving sexual offences; failure to do so can lead to suspension of sentence.
Suspension of sentence granted in light of the applicant's prior relationship with the victim and backlog of appeals, balancing the gravity of the offences with the rights of the accused.
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