The court emphasized that the appellate process requires a strict evaluation of evidence to determine if there exist prima facie grounds for the sustainability of conviction, restricting evidence reappraisal during suspension applications.

ORDER :

P. M. RAVAL, J.

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

2. The present application is preferred by the applicant – Ranjitkumar s/o Karu Bind – original accused No.1 under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 4.4.2025 by the learned 2^nd Additional Sessions Judge & Special Judge (POCSO), Devbhoomi Dwarka in Special POCSO Case No.5 of 2024.

3. Learned advocate Mr.M.S.Padaliya appearing for the applicant has mainly contended as follows :

(a) That the applicant is falsely and wrongly involved in the case.

(b) That the impugned order passed by the learned trial Judge is unjust, improper and against the facts and evidence on record.

(c) That the applicant is a young boy aged about 19 years and is permanent resident residing at the address given in the cause title and would cooperate in conducting the appeal as and when taken up for final hearing.

(d) That the victim has stayed with the applicant at her own volition for almost a period of one month.

(e) That it is a clear cut case of love affair. However, due to statutory provisions, the applicant is behind bar.

(f) That there are two sets of evidences of the victim on record wherein one set of fact denied of having any physical relationship with the applicant, whereas other set of evidence states that the applicant had physical relationship with the victim. Thus, when two sets of evidences are on record, learned trial Judge ought to have given benefit to the accused. In not doing so, learned trial Judge has committed serious error and has thus argued that there is a strong prima facie case of acquittal and has prayed to release the applicant on bail pending the appeal by suspending the sentence.

4. On the other hand, Mr.L.B.Dabhi, 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 submitted that the impugned judgment and order of conviction passed by the learned trial Court is well reasoned order after appreciating both the oral as well as documentary evidences and hence, no interference is required. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. Under the circumstances, learned APP has argued to reject the present application.

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

6. 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?

7. We have carefully considered the submissions made by learned advocates for 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, reported in (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 [Kishori Lal v. Rupa, (2004) 7 SCC 638), this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6)

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the app