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.

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 Bajaniya Jayesh Amratbhai Ramabhai, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366 of the Indian Penal Code and Sections 4(2), 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 27.01.2025 and order of sentence passed in Special POCSO Case No. 69 of 2022, 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 the minor victim and the applicant knowing each other prior to the registration of the offence. The victim was interested to engage with the accused but family of her against the relationship. In these background facts, the victim left her home and stayed together with the accused for about 3 to 4 days at the home of relatives, where they maintained physical relationship. On registration of the FIR, the accused was arrested and chargesheet came to be filed against him. The Court below on the basis of school record, came to the conclusion that the victim was minor and accordingly he found guilty for the offences enumirated above.

5. Learned advocate Mr. Yogendra Thakore, appearing on behalf of the applicant while praying for suspension of sentence contended that, the age has not been determined in terms of Section 35 of the Evidence Act and therefore, the evidence of age is not admissible in evidence. That it is a case of love affairs and in that view of the matter, the conviction is not sustainable in eye of law.

6. On the other hand, Ms. C.M. Shah, learned Additional Public Prosecutor and Ms. Urmila Desai, learned advocate for respondent complainant have 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.

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. So far issue of age is concerned, the prosecution failed to prove the source of date of birth, as the other school, where the victim had studied, recorded the date of birth on the basis of certificate issued by another primary school. In such circumstances, considering the nature of relationship, 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 27.01.2025 by the learned Special Judge (POCSO), Mehsana in Special POCSO Case No. 69 of 2022 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.