IA ORDER

1. RULE. Learned Additional Public Prosecutor appears and waives service of notice of rule on behalf of the respondent-State.

2. By way of the present application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant - accused is seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order of conviction dated 27-06-2023 passed in Special (POCSO) Case No. 2 of 2022 by the learned 2nd Additional Sessions Judge, Dabhoi, whereby, the present applicant - accused was sentenced to rigorous imprisonment of ten years and fine of Rs. 500/- and in default, simple imprisonment of one month for the offence punishable under Section 376 of the Indian Penal Code, 1860 and Sections 3, 4, 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012.

3. Heard learned advocate Mr. Bipin Bhatt for the applicant and learned APP Ms. C.M.Shah for the respondent – State No. 1. Though served, the respondent No. 2 has not appeared either in person or through an advocate.

4. Learned Advocate Mr. Bipin Bhatt for the applicant submits that, from the evidence on record, it emerges that the victim left the company of her parents of her own free will and joined the company of the applicant, and they resided together for a long time. It has also emerged on record that two children were born to them during this period, and even after the applicant was released on bail, he and the victim resided together with the consent of their parents. The learned advocate further submits that the complainant —the father of the victim—has not supported the case of the prosecution, has turned hostile, and has clearly stated that he had filed the complaint as he had doubts about the applicant. As far as the age of the victim is concerned, as per the case of the prosecution, the victim was about 17 years old on the date of the incident, however, the age of the victim has not been proved beyond reasonable doubt. Learned advocate for the applicant submits that the applicant has a good case on merits and that the present appeal is not likely to be heard in the near future, and its hearing would take considerable time. Hence, no purpose would be served by keeping the applicant in jail for an indefinite period with hardened criminals. The applicant has a good case on merits, and therefore, the suspension may be allowed.

5. Learned APP for the respondent – State has strongly objected to the submissions made by the learned advocate for the applicant and has submitted that learned Trial Court has rightly convicted the present applicant as he has been involved in a very serious offence and has requested this Court to dismiss the present application.

6. On perusal of the impugned judgment and order of conviction and the paper book produced on record by the learned advocate for the applicant, prima facie it appears that, as per the case of the prosecution, the victim was about 17 years old on the date of the incident and she herself has stated that she had voluntarily joined the company of the applicant, as they were residing in the same village and she had a love relationship with the applicant. She had left her own house in the year 2013 and had joined the company of the applicant and, with her willingness, they had a physical relationship. Even after the applicant was released on bail, he was residing with the victim and during this time she would meet her parents. Moreover, she has also admitted that she had resided with the applicant as husband and wife. As far as the age is concerned, the prosecution has produced the birth certificate of the victim in the deposition of the complainant PW-1 – Dahyabhai Mathurbhai Parmar, the father of the victim at Exh. 9, and PW-12 – Kailashben Raghavjibhai Vadnagara, the Talati-cum- Mantri of Goraj, has been examined and has produced the extract of the register wherein the birth of the victim was recorded at Exh. 81. The document at Exh.