When a convict is serving a fixed-term sentence and their appeal is unlikely to be heard promptly, courts should liberally exercise discretion to suspend the sentence, particularly if the convict has already served a substantial portion of the term, to preserve the effectiveness of the right to appeal.

IA JUDGMENT

1. RULE. Learned APP Mr. Bhargav Pandya waives service of notice of rule for and on behalf of the respondent-State.

2. By way of filing the present application under the provisions of Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant-convict (i.e. the original accused) seeks suspension of sentence imposed upon him vide judgment and order of conviction and sentence dated 12.08.2021 passed by the learned 2nd Additional Sessions Judge and Special (POCSO) Judge, Kheda at Nadiad, in Special (POCSO) Case No.16 of 2021.

3. By the aforesaid judgment and order of conviction and sentence, the applicant-accused came to be held guilty and convicted for the commission of offences punishable under Section 376(2)(i) of the Indian Penal Code, as well as under Sections 3(a) and 4 of the Protection of Children from Sexual Offences Act, 2012, (for short, “the POCSO Act”), and consequently, the applicant convict has been ordered to undergo sentence as under : -

4. It appears from the jail remarks that the applicant-convict has already completed 05 years, 02 months and 27 days of incarceration as on date and the appeal came to be admitted vide order dated 25.11.2021 passed by a Co-ordinate Bench of this Court.

5. At the outset, learned advocate Mr. Harshadkumar Panchal appearing for the present applicant-convict, while taking this Court through the evidence led by the prosecution has submitted that at the time of the alleged incident, the victim was accompanied by one friend, who has not been examined by the prosecution. While pointing out the statement of the victim recorded under Section 164 of the Cr.PC, learned advocate Mr. Panchal has submitted that in the said statement, the victim has stated that the present applicant had committed similar offence with his cousin also, however, none has been examined to prove the aforesaid allegation. Learned advocate Mr. Panchal has further submitted that even the father of the victim has also not been examined. Learned advocate Mr. Panchal, while pointing out the MLC produced by the prosecution at Exh. 12, has submitted that in the medical papers it has been clearly mentioned by the doctor that there was no internal or external injury on the person of the victim.

6. Learned advocate Mr. Panchal has further submitted that the present applicant-accused was charged for the offences punishable under Section 376(2)(i) of the Indian Penal Code, read with Sections 3(a) and 4 of the POCSO Act, and at the end of the trial, the trial court while convicting the present applicant for the above offence, deemed it fit to impose upon him a rigorous imprisonment of ten years along with the fine. He has further submitted that the present applicant-convict has already completed 05 years, 02 months and 27 days of incarceration as on date (i.e. more than 50% of the total sentence).

7. Learned advocate Mr. Harshadkumar Panchal, while placing reliance on the judgment of the Supreme Court in the case of Saudan Singh vs. State of Uttar Pradesh , reported in 2021 SCC OnLine SC 3259, has submitted that the applicant has undergone more than half of the sentence imposed by the trial court and since the appeal came to be admitted recently vide order dated 25.11.2021 pa