An applicant convicted under the POCSO Act may secure sentence suspension if the evidence reveals no direct involvement or overt acts, indicating potential for acquittal.

ORDER :

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State.

2. By way of this application under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicant-Pavankumar Munshiram Kumbhar-original accused seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 13.5.2025 by the learned Special Judge (POCSO) & Additional Sessions Judge, Porbandar in Special POCSO Case No.10 of 2023.

3. By the aforesaid judgment and order of conviction and sentence, the present applicant convict has been held guilty for the commission of offences as stated hereinbelow :

4. Learned advocate Mr.Vishal Anandjiwala appearing for the applicant has mainly contended as follows:

(a) That the role of the applicant accused is of abetment in the commission of offence since the applicant has just accompanied the accused No.1 from Rajasthan to Porbandar.

(b) That the prosecution has failed to establish that the applicant herein had either instigated, forced, supported or encouraged the accused No.1 to elope with the prosecutrix.

(c) That the prosecutrix in her deposition has admitted that there was love affair between her and the accused No.1.

(d) That in the cross examination, the prosecutrix has admitted that when her mother had reached Panchgaon, at that time, the applicant was not present and that the applicant herein has not even tried to commit any wrong thing.

(e) That looking to the evidence of the prosecutrix, no overt act has been attributed to the applicant herein. Therefore, it is prayed for suspension of sentence.

5. On the other hand, Mr.Bhargav Pandya, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is argued that the present application requires no indulgence at the hands of this Court since the present accused has been convicted for serious offence punishable under the POCSO Act. It is further argued that the case against the applicant herein has been proved beyond reasonable doubt before the learned trial Court and what has been stated by the learned advocate for the applicant requires thorough reappreciation of evidence which is not permissible at the stage of considering the application for suspension of sentence. Thus, learned APP has argued to reject the present application.

6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused.

7. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not?

8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order. In a serious offence of attracting the rigorous punishment, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another , (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under :

“30. In Kishori Lal v. Rupa , (2004) 7 SCC 638 , this Court has indicated the factors that require to be considered by the courts while grantin