ORDER : P. M. RAVAL, J. 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. The present application is preferred by the applicant – Mayurbhai Maheshbhai Prabhubhai Naika - original accused under Section 4 30 of the Bhartiya Nagarik Nayay Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 27.2.2024 by the learned Special Judge (POCSO) & 3 rd Additional Sessions Judge, Valsad in Special POCSO Case No.4 of 2022 whereby the applicant – original accused came to be convicted and ordered to undergo imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for six months for the offence under section 4 of the POCSO Act, rigorous imprisonment for 20 years and to pay a fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for two years for the offence under section 6 of the POCSO Act. The sentences were ordered to run concurrently. 3. Learned advocate Mr.Adil Mirza appearing for the applicant has mainly contended as follows : (a) That the judgment and order of conviction passed by the learned trial Court is bad in law and contrary to the provisions of law and the evidence on record. (b) That the judgment and order of conviction passed by the learned trial Court is without properly scrutinizing the evidence in its proper perspective. (c) That the applicant is convicted solely on the ground of admitted love affair between the applicant accused and the victim since despite there being consensual act, the consent is considered as immaterial. (d) That no witnesses have been examined to prove the birth certificate despite it being recorded, even if the age of the prosecutrix is not proved and if the consensual act is coming on record, no conviction can be imposed on the present applicant. (e) That despite the fact that the victim has not stated with regard to physical relationship with the present applicant, the prosecutrix has, under the influence of her mother, stated such thing before the learned trial Court and thus, the learned trial Court is swayed away with her deposition without considering the testimony is tutored and contrary to other evidence on record. (f) That even otherwise prima facie case for suspension is made out and hence, it is argued to allow the present application. 4. (f) That even otherwise prima facie case for suspension is made out and hence, it is argued to allow the present application. 4. On the other hand, Mr.L.B.Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is argued that learned trial Court has passed the well reasoned order where all the contentions raised by the applicant have been dealt with in detail both by examining the oral as well as documentary evidence. Even for the sake of argument, it is believed that the act was consensual, however, the prosecution has proved the age of the victim beyond reasonable doubt by producing the birth certificate on record and being a public document, the same was exhibited in accordance with law by relying on section 35 of the EVIDENCE ACT and thus, it is argued to reject the present application. 5. Learned advocate Ms.Bhavna Acharya appearing for respondent No.2 – original complainant has vehemently opposed the present application on the following grounds. (a) That the victim has deposed before the learned trial Court which clearly establishes that she was pregnant out of the sexual act with the present applicant. (b) That deposition of the prosecutrix has ring of truth and there are no reasons to disbelieve her. (c) That the age of the victim is also proved beyond reasonable doubt. (d) That the ground of the applicant with regard to consensual act has no legal standing since minority of the prosecutrix is proved beyond reasonable doubt. (e) That considering the age of the victim and age of the accused, no indulgence is required at the hands of this Court. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present applicant accused. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not? 8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. 8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. In a serious offence attracting the punishment of more than 10 years imprisonment, the Appellate Court has to assess the record and only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another, reported in (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under : “30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7 SCC 638 ), this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6) "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC 364], it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 3021PC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 9. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order and record of the case as well as the charges levelled against the present accused. Considering the age of the victim and the accused, more particularly, deposition which has been referred by the learned trial Court on page 7 of the impugned judgment till page 13, without discussing the judgment and order of conviction in detail which would prejudice the case of either side, the factum of love affair is also not denied by the victim. Even the factum of having forcible physical relationship with the victim is also denied. Even the factum of having forcible physical relationship with the victim is also denied. In the cross examination as reflecting from page 10 of the impugned judgment coupled with the fact that the victim has also admitted that her mother coming to know with regard to relationship with the accused, entire relationship was strained. Without discussing in detail the merits of the case and the manner in which the incident has taken place, prima facie case has been made out by the applicant for suspension of sentence and releasing him on bail coupled with the fact that there is no likelihood of appeal being taken in near future. 10. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant and to enlarge him on bail pending Criminal Appeal. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 27.02.2024 by the learned Special Judge (POCSO) & 3 rd Additional Sessions Judge, Valsad in Special POCSO Case No.4 of 2022 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) he shall not take undue advantage of the liberty or misuse the liberty; (b) he shall not leave India without the prior permission of the concerned Sessions Court; (c) he shall furnish the present address of his residence to the court concerned at the time of execution of the bond and shall not change the residence without the prior permission of the concerned Sessions Court. (d) he shall proceed with the Criminal Appeal as and when it may be listed. 12. Rule made absolute to the aforesaid extent. Direct service is permitted.