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 389(1) of the Code of Criminal Procedure, applicant Pappukumar @ Ajit Omprakash Gupta, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366, 376(3) of the Indian Penal Code and Sections 4 and 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 04.01.2024and order of sentence passed in Special POCSO Case No.293 of 2022, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 363: 5 years R.I. and fine of Rs.5000/- and in default thereof, further RI for 3 months;

(ii) Section 366: 7 years R.I. and fine of Rs.7000/- and in default thereof, further RI for 6 months;

(iii) Section 376(3): 20 years R.I. and fine of Rs.50000/-

and in default thereof, further RI for 3 months;

(iv) Sections 4 & 6 of the POCSO Act: no separate sentence being awarded;

4. Learned counsel Mr. Pravin Gondalia 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 victim herself came to Indor to live with the accused herein, but considering the age of the victim, he had called the father of the victim and informed him that the victim is with him and take her from Indor. Thus, the ingredients of Sections 366 and 363 of the IPC are not attracted. That the story projected with respect to the rape committed upon the victim at Balajai Farm, Surat is not believable because neither victim nor her father disclosed the facts that on which date and time, she was taken at Balaji Farm. That based on the transfer certificate of the school, the Court has determined the age of the victim which cannot be permitted in the eye of law and thus, when the age is not established by the prosecution, the conviction recorded is not sustainable. In these circumstances, it is contended that there are no chances of appeal being heard in near future and considering the evidence on record, there are all chances in succeeding in appeal.

5. 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 therefore, he would urge that, no case is made out to suspend the sentence pending the appeal. That the victim was aged about 14 years and the applicant accused being a maths teacher of the victim, taking disadvantage of the situation, committed an offence, as above and thus, the learned Trial Court has rightly convicted and sentenced the accused.

6. Having regard to the facts and circumstances of present case, the issue arises as to whether the applicant has made out a case for suspension of sentence under Section 389(1) Cr.P.C?

7. It is the case of the prosecution that the accused abducted the victim and being a teacher of her, committed a rape upon her at Balaji Farm. She was abducted from the lawful guardianship of her father and maintained relationship.

8. We have carefully examined the case records and considered the submissions made by the both the sides. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence. The reasons for our decision are as under:

(i) According to the case of the prosecution, the victim was aged about 14 years old when incident was occurred. The victim as well as her father failed to produce the proof of the date of birth. The father has admitted that in the school, the date of birth was recorded without any proof thereof. The learned Trial Court has relied on the tran