The conviction in child sexual abuse cases hinges on the credible testimony of the victim, which requires careful judicial evaluation, reaffirming that children's accounts can substantiate allegations when found credible.

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

1. By way of this application under Section 4 30(1) of BNSS, 2023, the applicant Ajaybhai s/o Suresh Talshibhai Vasava, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 4 , 6 and 12 of Protection of Children From Sexual Offences Act .

2. The present appeal and the application for suspension of sentence arise from the judgment dated 01.11.2023 and order of sentence passed in Special POCSO Case No. 110 of 2021, whereby, the applicant herein was convicted and sentenced as under:

(b) of IPC and Sections 8 and 12 of POCSO Act are concerned, no separate sentence has been awarded by the trial Court.

3. Facts and circumstances giving rise to file appeal as well as this application are that, the applicant accused and the parents of the minor victim aged about 6 years, were neighbour, residing at village: Kadi, Dist.: Mehsana. According to case of the prosecution, on 20.09.2021, the victim aged about 6 years, was subjected to penetrative sexual assault and sexual harassment by the applicant accused – Ajay Vasava. When the victim and other two girls were playing near the house, the accused took them at the first floor of the house and so far as victim is concerned, she made her lie down on the bed, covered her with blanket, took off her jeans pant and inserted his fingers into her private part. Other two minor girls were busy in playing ball under the coat given by the accused. In the lunch hours, mother did not find the victim in the house and the brother of the victim had gone to the first floor of the room and he found that the room was closed from inside and after knocking sometime, the door was opened by the accused. After the lunch, the victim complained of to the mother about pain in her private parts. The mother found reddishness in the private part and applied cream. In the evening hours, again the victim complained of about the constant pain at her private part. The victim was taken into confidence by the mother and then she revealed that, the accused had inserted his fingers in her vagina, when she was at his house. The incident was reported to the police. The accused was arrested and upon completion of the investigation and filing of the chargesheet, the trial proceedings commenced. At the end of trial, the accused was found guilty for the offences mentioned hereinabove.

4. We have heard learned counsel Mr. Toms Mathai appearing for and on behalf of the applicant, Mr. Harshit Karathia, for the private respondent and Mr. Pranav Dhagat, learned Additional Public Prosecutor for the respondent State.

5. Mr. Toms Mathai, learned advocate while assailing the judgment of conviction and order of sentence submitted that, the trial Court has not properly appreciated the evidence of the victim and her mother in its true prospective, because, considering the tender age of the child, the possibility of tutoring her cannot be ruled out. That the evidence of child witness must be evaluated more carefully and with greater circumspection, because the child witness is susceptible to be swayed by what others tell her and therefore, the child witness is an easy prey to tutoring. In the facts of the present case, the victim PW-16, was able to identify and distinguish between two terms i.e. ‘doctor’ and ‘magistrate’, which would demonstrate that, she was given a lesson about what to speak and in what manner. Even, it is inherently difficult for the victim to identify her own thumb impression and the specific document on which, same has been affi