IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.

1 of 2025 In R/CRIMINAL APPEAL NO. 2763 of 2025 ==========================================================

PARESHBHAI MANSINGBHAI MER Versus STATE OF GUJARAT & ANR.

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Appearance:

MS URVASHI K MEHTA(11469) for the PETITIONER(s) No. 1 MS ASHMITA PATEL, APP for the RESPONDENT(s) No. 1 VIVEK R TRIVEDI(7716) for the RESPONDENT(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 16/12/2025

IA ORDER

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

1. Rule. Learned APP waives service of Rule on behalf of respondent State and Mr.Vivek Trivedi, learned advocate waives service of rule on behalf of the private respondent. By consent, Rule is fixed forthwith.

2. We have heard Ms.Urvashi Mehta, learned advocate, Mr.V.R.

Trivedi, learned advocate and Ms.Ashmita Patel, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Pareshbhai Mansingbhai Mer, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 366, 363, 376(2)(h)(i)(n) of the Indian Penal Code and Sections 3 and 4 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 31.01.2025 and order of sentence passed in Special POCSO Case No.48 of 2018, whereby, the applicant herein was convicted and sentenced as under: Section Imprisonment Fine In default S.376(2)(h)(i)(n) I.R. for 20 years Rs.10,00 Imprisonment for 6 of IPC and 0/- months Sections 3(a) and

4 of POCSO S.366 of IPC R.I. for 7 year Rs.10,00 Imprisonment for 6

0/- months S.363 of IPC R.I. for 5 years Rs.5,000/ Imprisonment for 1 - month

5. Facts and circumstances giving rise to file present application are that the minor victim was kidnapped from Village Dhuva and was brought to the Village Morthana, Surat and kept there by the accused for about 4 months and in the meantime, she was sexually abused by the accused. In such circumstances, on the basis of FIR and chargesheet, the accused was tried by the Sessions Court and at the conclusion of the trial, he found guilty for the offences as referred above.

6. Learned advocate Ms.Urvashi Mehta, 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 accompanied to the accused and stayed as husband and wife for about 4 to 5 months which indicative of the facts that the relations were intimate in nature and in that view of the matter, considering the period of incarceration and delay aspect in deciding the appeal, the prayer may be allowed.

7. On the other hand, Ms.Ashmita Patel, learned Additional Public Prosecutor for the respondent – State and Mr.V.T. Trivedi, learned advocate for the private respondent have supported the impugned judgment and order of conviction as passed by the trial Court and contended that the victim was minor and her consent is of no consent in eye of law and therefore, in absence of any admissible ground, the prayer may not be entertained.

8. 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 accused and the victim, prior to the incident, got acquainted and maintained relations and on that basis, they stayed together from 03.06.2018 to 04.10.2018. In such circumstances, considering the period of incarceration and delay aspect, as canvassed by the convict, we are persuaded to exercise our