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.Bhaumik Dholariya, Mr.Pravin Gondaliya, learned advocates and Ms.C.M. Shah, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Jitubhai Govindbhai Parmar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 376(2)(N) and 376(3) of the Indian Penal Code and Sections 4 and 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 29.11.2024 and order of sentence passed in POCSO Case No.22 of 2022, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that on 26.09.2022, the minor victim and the applicant who were residing in the same village and knowing each other, left the village and stayed together at the different places. According to the case of the prosecution, the victim was sexually abused at city Surat. In these background facts, upon registration of the FIR, the applicant was arrested and at the end of investigation, chargesheet came to be filed. He was put on trial. The Court below, on the basis of available evidence, adduced by the prosecution, came to a conclusion that the victim was minor at the relevant time, and on appreciation of the evidence, the accused was found guilty.

6. Learned advocate Mr.Bhaumik Dholariya, appearing on behalf of the applicant while praying for suspension of sentence contended that the testimony of the victim does not inspire confidence on the aspect of sexual abuse as under the pressure, she had deposed against the accused. He drew the attention of this Court to the statement recorded under Section 164 of the victim, to contend that before the Magistrate, the victim did not have disclosed that she was sexually abused when they were at Surat. In such circumstances, he would urge that the victim has improved her version and the said improvement on the material aspect impact on the reliability of the victim and create a doubt about genuineness of the incident. Thus, he would urge that when there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant.

7. On the other hand, Mr.Pravin Gondaliya, learned advocate and Ms.C.M. Shah, learned Additional Public Prosecutor have supported the impugned judgment and order of conviction as passed by the trial Court and contended that the victim was minor at the relevant time and the contents of the statement recorded under Section 164 is not substantial evidence, but the evidence of the victim tested in the cross examination is the substantial evidence and the learned Trial Court has rightly acted upon the testimony of the victim on the aspect of sexual abuse and has not committed any error while convicting the accused. Thus, there is no case for exercising 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. It is no doubt true that the victim had admitted before the doctor that on her volition, she left the village and remained in the company of the accused. We have examined the contents of the statement recorded under Section 164 of the Cr.P.