The court has discretion to suspend a sentence based on the applicant's circumstances and contradictions in the victim's testimony.

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. By way of this application under Section 430(1) of BNSS, 2023, the applicant Nileshbhai Pratapbhai Jadhav, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363 , 366 , 376(2)(N), 506 of the Indian Penal Code and Sections 4 & 6 of Protection of Children From Sexual Offences Act .

3. The present appeal and the application for suspension of sentence arise from the judgment dated 24.12.2024 and order of sentence passed in Special POCSO Case No. 94 of 2022 (3 of 2023), whereby, the applicant herein was convicted and sentenced as under:

So far as offence under the provisions of Sections 363 , 366 , 376(2)(N) of IPC are concerned, no separate sentence has been awarded by the trial Court.

4. Facts and circumstances giving rise to file appeal as well as this application are that the minor victim and applicant accused were in relations and due to said relations the minor left home on her own volition and remained in the company of the applicant from 08.11.2022 to 17.11.2022. In such circumstances, FIR was being lodged and accordingly, at the end of the investigation, the accused was chargesheeted. The learned Sessions Court found guilty the applicant, as victim was minor at relevant time.

5. Learned advocate Mr. G. A. Baghel, appearing on behalf of the applicant while praying for suspension of sentence contended that, the accused has undergone two years and more of his imprisonment and at relevant time, he was unmarried and case being love affairs and the appeal will not likely to be heard in near future, case of the applicant may be considered.

6. 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 contended that, the learned trial Court has rightly relied on the evidence of the age and therefore, considering the gravity of offence no case is made out.

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

8. We have carefully examined the case records and considered the submissions made at the bar. On perusal of the evidence on record, we found major contradictions in the testimony of the victim. In addition to that, the victim herself was in relationship with the accused and they stayed together for a considerable time. Since last two years, the accused is behind the bar and there are bleak chances of appeal being heard in near future. In such circumstances, considering the peculiar facts and circumstances of the present case, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 24.12.2024 by the learned Special Judge (POCSO) & 5^th Additional Sessions Judge, Surat at Bardoli in Special POCSO Case No. 94 of 2022 (3 of 2023) is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for f