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 – original accused under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 31.1.2025 by the learned Special POCSO & Additional Sessions Judge, at Kapadvanj, District Kheda in Special POCSO Case No.20 of 2024 (old POCSO No.23 of 2023). 3. By way of the impugned judgment and order, learned trial Judge has convicted as follows : Offences Punishment Fine U/s 363 of IPC 4 years SI Rs.2500/-, in default, 2 months SI U/s 4 and 6 of POCSO Act, 2012 and u/s 376(2) (n) of IPC 20 years RI Rs.5000/-, in default, 5 months SI 4. Learned advocate Mr.Maulik Soni appearing for the applicant has mainly contended as follows : (a) That the applicant and prosecutrix were having lofe affair. (b) That the applicant and prosecutrix both have willingly run away and were living together. (c) That while the victim was produced before the concerned police authority, she has not uttered a single word with regard to the applicant having forceful relationship. (d) That the statement before the Doctor by way of history is also in support of the present applicant who was around 17 years of age at the time of alleged incident. (e) That learned trial Court has convicted the applicant despite the age of the prosecutrix as minor being not proved. (f) That even the statement before the learned Magistrate under section 164 of the CrPC does not speak about any forceful act by the applicant. Hence, it is argued to allow the present application. 5. On the other hand, Mr.Aditya Jadeja, 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 submitted that there may be a love affair between the applicant and the prosecutrix, the factum of consent will be of no help to the applicant since the prosecution has been able to prove the age of the prosecutrix as minor on the date of offence. It is submitted that testimony of the victim is of sterling quality. It is submitted that there may be a love affair between the applicant and the prosecutrix, the factum of consent will be of no help to the applicant since the prosecution has been able to prove the age of the prosecutrix as minor on the date of offence. It is submitted that testimony of the victim is of sterling quality. It is submitted that the impugned judgment and order of conviction passed by the learned trial Court is well reasoned order after appreciating both the oral as well as documentary evidences and hence, no interference is required. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. Under the circumstances, learned APP has argued to reject the present application. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. Though served, none appears for the original complainant. 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 gone through the impugned judgment and order. In a serious offence of attracting the punishment under sections 4 and 6 of the POCSO Act and section 376(2) (n) of IPC, the Appellate Court has to assess the record 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. 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. 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. 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 , (2002) 9 SCC 364 ] and [ 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 302 IPC, 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 , (2005) 5 SCC 281 ] and [ 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. 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 it transpires that factum of love affair clearly surfaces on record. Considering the manner in which the incident has taken place, more particularly, the offence under section 366 of IPC is not proved, coupled with the fact that the learned trial Court has also recorded on page 17 of the impugned judgment in paragraph 10.3 regarding the history given by the prosecutrix before the Doctor, without entering into the merits of the impugned judgment at this stage which would prejudice the case of either side, coupled with the fact that the incident is of 30.1.2023, whereas the impugned judgment is dated 31.1.2025 and that there is no likelihood that the present appeal will be taken up for hearing in near future, it would be in the interest of justice to exercise discretion in favour of the applicant. 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. 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 31.01.2025 by the learned Special POCSO & Additional Sessions Judge, at Kapadvanj, District Kheda in Special POCSO Case No.20 of 2024 (old POCSO No.23 of 2023) 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.