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.

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:

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 relations with the accused, she decided to live with the accused. In such circumstances, the FIR came to be filed. The accused was arrested. The learned Sessions Court, after appreciation of evidence, held guilty the applicant accused for the offences as recorded above.

5. Learned advocate Mr. Anil Rathod, 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 and considering long stay of the accused applicant with the victim the court below committed an error while convicting the accused.

6. Mr. Vicky Parmar, learned advocate has argued in favour of the applicant accused and fairly stated that his client has no objection, if prayer is allowed.

7. On the other hand, Ms. C. M. Shah, learned Additional Public Prosecutor and has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the learned trial Court has rightly relied on the evidence of the age and therefore, considering the gravity of offence, no case is made out.

8. Issue arises for our determination, 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. In this case after the marriage of the victim, she left her matrimonial home and lived with the accused in a live in partnership and till date, she is residing with the in-laws of the accused. In such circumstances, when age has not been proved in accordance with law and having regard to the peculiar facts and circumstances of the 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 24.09.2024 by the learned Special Judge (POCSO) & 4^th Additional Sessions Judge, Junagadh in Special POCSO Case No. 36 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. Direct service permitted.