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2025 Supreme(Online)(Guj) 4261
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ILESH J. VORA, P. M. RAVAL, JJ
NITESHJI BALWANTJI THAKOR – Appellant
Versus
STATE OF GUJARAT – Respondent
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2025| R/CRIMINAL APPEAL NO. 1328 of 2025| Special POCSO Case No. 90 of 2021
For the Appellants/Petitioners: DR. HARDIK K RAVAL
For the Respondents: JIGNESHKUMAR M NAYAK, MR. J.K. SHAH
Court ruled on suspending sentence by considering FIR delay and age of victim, emphasizing appeal rights.
Headnote:(A) POCSO Act, 2012 - Section 6 - Criminal Procedure Code - Application for Suspension of Sentence - Conviction under multiple sections including sodomy and abduction - The court found that the FIR was registered late, raising doubts about the prosecution's case - While the accused argued the victim's alleged consent, the minority of the victim precluded her capacity to consent legally - The Court noted the discrepancies regarding age and the late filing of FIR but decided against discussing merits in detail. (Paras 2-9)
(B) Criminal Procedure - Appeal Procedure - The court held that the appellate court should liberally view suspensions unless exceptional circumstances are present and that undue delay in appeal disposal could render it futile. (Paras 8, 7)
| Table of Content |
|---|
| 1. suspension basis and compensation awarded. (Para 2) |
| 2. arguments regarding conviction and victim's age. (Para 3 , 4 , 5) |
| 3. court's assessment of evidentiary contradictions. (Para 6 , 7 , 8) |
| 4. suspension granted in light of appeal process. (Para 9) |
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State.
2. The Applicant – Org. Accused has preferred the present Application under Section 430 of the BNSS, 2023 seeks suspension of sentence awarded vide judgment and order dated 08.08.2024 passed by the Ld. Special Judge (POSCO) Gandhinagar in Special POCSO Case No. 90 of 2021 convicting the Applicant for the following offences as stated hereinbelow:-
The Trial Court has further granted compensation of Rs. 6 lacs to the Victim under the Victim Compensation Scheme, 2019.
Section
Imprisonment Fine in Rs.
In default of payment of fine.
363 IPC
RI for one 1000/- year
SI 15 days
366 IPC
RI for three 3000/- year
SI one Month
376(2)(n) of IPC and 6 of Pocso Act
RI for 20 10,000/- years
RI for Six months
3. Learned Advocate Dr. Hardik K. Raval for the applicant has argued that:
(1) That the judgment and order of conviction is erroneous and contrary to the evidence on record.
(2) That the Trial Court has erred in considering the prosecutor’s case, which is only full of infirmities and contradictions, and thus creates serious doubt as to the trustworthiness of the prosecutor’s case.
(3) That the FIR came to be registered after almost 17 days, for which there is no satisfactory explanation.
(4) That the prosecutrix was in love with the present applicant and had entered into a physical relationship with her free will and consent.
(5) That the victim had left her house at her own will and joined the accused without informing anyone.
(6) That the victim was taken to different places and had visited different public places and travelled by bike as well as other vehicles. Since she has not informed anyone about her abduction or that any sexual offence was committed against her during her company with the accused for 4 months and thus, this is a statutory rape case.
(7) That the age of the prosecutrix is also not proved.
Hence, it is argued to allow the present application.
4. Learned Additional Public Prosecutor Mr. Jaswant K. Shah for the State has vehemently opposed the present application, contending that the age of the accused was almost 25 years at the time of the alleged offence and that the victim was 16 years and 4 months. That the Trial Court has given a detailed reasoned judgment by appreciating both the documentary as well as oral evidence. That the age of the victim has been proved beyond reasonable doubt. That the learned Trial Judge has considered the deposition of the victim in its true perspective. Hence, it is argued to reject the present application.
5. Learned Advocate Mr. J.M Nayak appearing for Respondent No. 2 complainant has also vehemently opposed the present application on the ground that the offence punishable under Sections 363 , 366, 376(2)(N) IPC and Sections 4 and 6 of the POCSO Act, 2012 has been proved beyond reasonable doubt. There are no reason to disbelieve the deposition of the Prosecutrix, that on the date of offense, the age of the victim was 16 years and 4 months, and has committed sexual offense. That the learned Trial Judge, though has admitted that the prosecutrix had a love affair with the applicant, however, once the minority of the prosecutrix is proved, it would not come to the aid of the accused, and has thus argued to reject the present application.
6. Heard learned advocates for the respective parties.
7. The issue is as to whether the sentence imposed upon the accused is required to be suspended or not? In this regard, it would be profitable to refer the judgment of the Hon’ble Supreme Court in the case of Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat , reported in (1999) 4 SCC 421. wherein, the Appella
