The court established that in serious offences, convictions should not be automatically sustained, and there must be evident grounds for suspicion or errors to allow for the suspension of sentences during appeals.

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 – original accused 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 31.1.2025 by the learned Special POCSO & Additional Sessions Judge, at Kapadvanj, District Kheda in Special POCSO Case No.20 of 2024 (old POCSO No.23 of 2023).

3. By way of the impugned judgment and order, learned trial Judge has convicted as follows :

4. Learned advocate Mr.Maulik Soni appearing for the applicant has mainly contended as follows :

(a) That the applicant and prosecutrix were having lofe affair.

(b) That the applicant and prosecutrix both have willingly run away and were living together.

(c) That while the victim was produced before the concerned police authority, she has not uttered a single word with regard to the applicant having forceful relationship.

(d) That the statement before the Doctor by way of history is also in support of the present applicant who was around 17 years of age at the time of alleged incident.

(e) That learned trial Court has convicted the applicant despite the age of the prosecutrix as minor being not proved.

(f) That even the statement before the learned Magistrate under section 164 of the CrPC does not speak about any forceful act by the applicant. Hence, it is argued to allow the present application.

5. On the other hand, Mr.Aditya Jadeja, 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 there may be a love affair between the applicant and the prosecutrix, the factum of consent will be of no help to the applicant since the prosecution has been able to prove the age of the prosecutrix as minor on the date of offence. It is submitted that testimony of the victim is of sterling quality. 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.

6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. Though served, none appears for the original complainant.

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 gone through the impugned judgment and order. In a serious offence of attracting the punishment under sections 4 and 6 of the POCSO Act and section 376(2) (n) of IPC, 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