The main legal point established in the judgment is the court's discretion to suspend the sentence based on the circumstances of the case, without making any observation on the merits of the case.

JUDGMENT

1. Heard learned counsel for the parties on the application for suspension of sentence.

2. Learned counsel for the appellant-applicant has submitted that the trial court has grossly erred in convicting and sentencing the appellant-applicant for the offence under Section 363, 366(a), 376(D) IPC and Section 3/4, 5(L)/6 of the POCSO act.

3. Learned counsel for the appellant-applicant has submitted that initially a Missing Person Report (Ex.P/6) was lodged at the instance of Peera Ram son of Ratna Ram Ji (PW-6) on 26.11.2017 wherein, it was stated that his minor daughter aged about 171/2 years is missing since 5 aM. It is further submitted that in the said Missing Person Report, no suspicion was cast on anyone. However, the victim Mst 'S' being the minor daughter of PW-6 was recovered on 5.12.2017 from ahmedabad. She filed a written complaint, in which, for the first time, the appellant-applicant was named as the accused. Learned counsel has submitted that in her written complaint (Ex.P/7), the victim Mst. 'S' stated that she left her house on her own and, thereafter, the appellant-applicant met her and both of them went to Sanchore and thereafter ahmedabad in a pick-up vehicle. In her police statement recorded on 5.12.2017 itself, the victim has reiterated the same allegations stating that she left her house on her own, however, in her statement recorded under Section 164 CrPC (Ex.P/10), she changed the version and stated that appellant-applicant came in a Bolero vehicle and had forcibly abducted her while tying her hands and legs. It is also argued that the victim has falsely stated in her statement recorded under Section 164 CrPC that appellant-applicant had forcibly abducted because in her court statement, again she has stated that she left her house on her own.

4. Learned counsel for the appellant-applicant has argued that though PW-6 in his complaint dated 26.11.2017 (Ex.P/6) has mentioned age of the victim as 171/2 years but from his court statement and statement of the Head Master namely Dharmendra (PW-15), it is clear that the age in the school record was recorded without submitting any proof regarding the date of birth of the victim. Learned counsel has, therefore, argued that as a matter of fact, the victim was major on the day of incident and she eloped with the appellant-applicant as per her own free will, however, the trial court without properly appreciating the above piece of evidence has illegally convicted and sentenced the appellant-applicant vide impugned judgment. It is further argued that the appellant-applicant is behind bars since 7.12.2017 and hearing of the appeal is likely to take time. It is, thus, prayed that the sentence awarded to the appellant-applicant by the trial court may be suspended till pendency of the appeal.

5. Per contra, learned Public Prosecutor has opposed the application for suspension of sentences and argued that the prosecution has sufficiently proved the guilt of the appellant-applicant before the trial court and the trial court has rightly convicted and sentenced him vide impugned judgment, therefore, no case for suspension of sentence is made out.

6. Heard learned counsel for the parties and carefully scrutinized the record.

7. In the Missing Person Report (Ex.P/6), the appellant-applicant has not been named. The victim, in her written compliant, police statement and in her court statement has stated that she left her house on her own. The complainant (PW-6), in his court statement, has clearly stated that he got recorded age of the victim in the school record on mere guess. The appellant-applicant is in custody since 7.12.2017 and hearing of the appeal is likely to take time.

8. Taking into consideration the overall facts and circumstances of the case and without making any observation on the merits of the case, we are inclined to suspend the sentence of the applicant.

9. accordingly, this second application for suspension of sentence is allowed and it is ordered that the sentenc