Appellate courts must evaluate apparent errors in conviction before granting bail in cases involving serious offences, relying on objective assessment of the evidence presented.

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 – Mayurbhai Maheshbhai Prabhubhai Naika - original accused under Section 4 30 of the Bhartiya Nagarik Nayay Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 27.2.2024 by the learned Special Judge (POCSO) & 3^rd Additional Sessions Judge, Valsad in Special POCSO Case No.4 of 2022 whereby the applicant – original accused came to be convicted and ordered to undergo imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for six months for the offence under section 4 of the POCSO Act, rigorous imprisonment for 20 years and to pay a fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for two years for the offence under section 6 of the POCSO Act. The sentences were ordered to run concurrently.

3. Learned advocate Mr.Adil Mirza appearing for the applicant has mainly contended as follows :

(a) That the judgment and order of conviction passed by the learned trial Court is bad in law and contrary to the provisions of law and the evidence on record.

(b) That the judgment and order of conviction passed by the learned trial Court is without properly scrutinizing the evidence in its proper perspective.

(c) That the applicant is convicted solely on the ground of admitted love affair between the applicant accused and the victim since despite there being consensual act, the consent is considered as immaterial.

(d) That no witnesses have been examined to prove the birth certificate despite it being recorded, even if the age of the prosecutrix is not proved and if the consensual act is coming on record, no conviction can be imposed on the present applicant.

(e) That despite the fact that the victim has not stated with regard to physical relationship with the present applicant, the prosecutrix has, under the influence of her mother, stated such thing before the learned trial Court and thus, the learned trial Court is swayed away with her deposition without considering the testimony is tutored and contrary to other evidence on record.

(f) That even otherwise prima facie case for suspension is made out and hence, it is argued to allow the present application.

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 argued that learned trial Court has passed the well reasoned order where all the contentions raised by the applicant have been dealt with in detail both by examining the oral as well as documentary evidence. Even for the sake of argument, it is believed that the act was consensual, however, the prosecution has proved the age of the victim beyond reasonable doubt by producing the birth certificate on record and being a public document, the same was exhibited in accordance with law by relying on section 35 of the EVIDENCE ACT and thus, it is argued to reject the present application.

5. Learned advocate Ms.Bhavna Acharya appearing for respondent No.2 – original complainant has vehemently opposed the present application on the following grounds.

(a) That the victim has deposed before the learned trial Court which clearly establishes that she was pregnant out of the sexual act with the present applicant.

(b) That deposition of the prosecutrix has ring of truth and there are no reasons to disbe