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. We have heard Mr.D.K. Patel, learned advocate, Mr.Kurven Desai, leaned advocate and Mr.Manan Mehta, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, the applicant – Rameshbhai Jayantibhai Harijan, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 376(2)(f), 376(2)(n) of the Indian Penal Code and Sections 4, 5(l), 5(n), 6 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 31.01.2026 and order of sentence passed in Special POCSO Case No. 11 of 2025, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that the applicant accused was tried and prosecuted for the offence of sexual abuse and rape upon the minor victim aged about 17 years and 6 months. The accused is the distant relative and under the guise of securing employment, she was taken to the secluded place at Ahmedabad and subjected to sexual exploitation. The FIR for the alleged incident which occurred in the year 2023 and reported to the police in the form of FIR in March-2025. In such circumstances, the learned Trial Court, upon appreciation of the evidence, held guilty the accused applicant and sentenced him for the offences, as referred above.

6. Learned advocate Mr. D. K. Patel, appearing on behalf of the applicant while praying for suspension of sentence contended that, the allegation of sexual exploitation having been made with an ulterior motive and that too after a period of two years and five months and the said delay having not been sufficiently explained by the prosecution which creates a doubt on the reliability of the version of the victim as well as case of the prosecution. The victim, after the incident, got married and according to her statement, due to the conduct of the accused, her marriage life was getting disturbed and matrimonial dispute with the husband was arisen and presently, she is living in the parental home. The prosecution, despite of the availability of the independent witnesses like husband and other family members, did not examine to corroborate the allegations made by the victim. In such circumstances, it is submitted that despite of opportunity to lodge an FIR and due to the family dispute, on the aspect of property, the victim was used to file a false FIR against the applicant. The applicant was throughout on bail and having regard to the grounds raised in the appeal memo, there are merits in the appeal. However, appeal may not likely to be heard in near future and therefore, this is a fit case for exercising discretion in favour of the applicant accused.

7. On the other hand, Mr.Manan Mehta, learned Additional Public Prosecutor for the State and Mr.Kurven Desai, 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 Trial Court has rightly convicted the applicant accused as under the guise of securing the employment, the victim was sexually abused by the applicant who happened to be a distant relative. Referring to Section 29 of the POCSO Act, it is submitted that the provision creates a statutory presumption of guilt once foundation facts are established and the accused failed to rebut the presumption. In such circumstances, in absence of any exceptional circumstances, no case is made out and the application m