IA ORDER

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. We have heard Mr.Pratik Barot, learned advocate and Mr.Soaham Joshi, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant Lalji Ambaji Thakor, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366 of the Indian Penal Code and Sections 4, 5(L), 6 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 31.07.2024 and order of sentence passed in Special POCSO Case No.04 of 2022, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that due to the relations with the applicant accused, she left her home and remained in the company of the accused for a considerable time and during their stay, the physical relationship was maintained by them. Pursuant to the FIR, the applicant accused was arrested and at the end of investigation, chargesheet came to be filed. He was put on trial. The learned Court below, on the issue of age, came to a conclusion that the victim was minor and on appreciation of the evidence, the accused was found guilty, as enumerated above.

6. Learned advocate Mr.Pratik Barot, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the prosecution miserably failed to prove that the victim was under 18 years. That the birth date mentioned in the school records has not much evidentary value and the same has not been proved in terms of Section 35 of the Indian Evidence Act. That the victim was knowing that the applicant was married and despite of her marriage was being allegedly solemnized with Natubhai Thakore, she had remained in the company of the accused. Thus, in these background facts, the Court below could not have convicted the applicant and there are all chances of appeal being succeeded. However, in view of the bleak chances of the appeal likely to be heard in near future, the case of the applicant may be considered.

7. On the other hand, Mr.Soaham Joshi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the issue of age is a subject matter of final hearing of the appeal and therefore, considering the seriousness of the offence, no ground exists for exercising judicial discretion.

8. Having regard to the facts and circumstances of the case, the issue arises as to whether the applicant has made out a case for suspension of sentence?

9. We have carefully examined the case records and considered the submissions made at the bar. On perusal of the case records, we find that the age factor has not been properly appreciated and proved by the prosecution. The victim was knowing the fact that the accused was married and considering her marital status, she was in relations with the applicant accused. In such circumstances, without much discussions on merits of the case, In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgm