Where there are conflicting views on the age of the victim, the more favorable view for the accused should be adopted, leading to suspension of sentence.

ORDER :

I.A. No. 796 of 2025

1. The instant interlocutory application has been filed on behalf of appellant, under Section 430(1) of the BNSS , 2023 for suspension of sentence dated 30.9.2024 passed by learned Additional Sessions Judge-cum-Special Judge, Chatra in POCSO Case No. 17 of 2018 arising out of Mayurhand P.S. Case No. 10 of 2018, by which the appellant has been sentenced to undergo RI for 10 years with fine of Rs. 40,000 for the offence under Section 366A, and in default of payment of fine, he has been directed to undergo simple imprisonment for 3 months; and further has been ordered to undergo sentence of 05 (five) years of Rigorous Imprisonment and fine of Rs. 20,000/- for the offence under Section 363 IPC and in default of payment of fine, the appellant has been directed to undergo 45 (forty five) days of simple imprisonment. Both the sentences have been directed to run undergone concurrently.

2. The learned counsel for the appellant has submitted that the even if the entire testimony of the victim, who has been examined as P.W. 3 will be taken into consideration then it would be evident that no case under Sections 366A or 363 IPC is made out against the appellant.

3. It has been contended that the date of birth as has been said by the Investigating Officer, who has been examined as P.W. 12, is 06.07.2001 as recorded in the Birth Certificate but the said birth certificate was not marked as Exhibit.

4. It has further been contended that medical board was constituted in which the age of the victim has been assessed to be 17 to 19 years. Hence, the age since has not been conclusively determined and as per the medical board the age of the victim has been assessed to be 17 to 19 years, as such the 19 years of age is to be taken into consideration therefore the victim cannot be said to be minor.

5. Further from the testimony of the victim herself it is evident that she went to many places on her own will and returned safely and she did not deposed that any wrong has been committed with her, therefore no offence under 366A or 363 IPC is made out against the appellant.

6. Learned counsel for the appellant based upon the aforesaid grounds has submitted that it is a fit case for suspension of sentence during pendency of the instant appeal.

7. While on the other hand, learned APP appearing for the State has vehemently opposed the prayer for suspension of sentence.

8. We have heard learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned judgment as also the testimony of the witnesses as available in the Lower Court Records.

9. This Court in order to appreciate the finding so recorded by the trial Court in the impugned order has gone through the testimony of witnesses so as to reach to the conclusion with respect to the issue of age.

10. The Investigating Officer, who has been examined as P.W. 12, has deposed that as per Birth Certificate, which has been issued by the Principal of the concerned School, the date of birth of the victim is 06.07.2001. Furthermore, with respect to determination of age, the medical board was constituted which assessed the age of the victim to be 17 to 19. Therefore, this Court is of the view that where two views are available with respect to age, and further the date of birth as referred in the birth certificate of the victim has been referred by the Investigating officer [P.W. 12] in his deposition is 06.07.2001, but the same was not marked as Exhibit, as such the date of birth cannot be said to be conclusively determined. In such circumstance, the date of birth recorded in upper side is to be taken into consideration which is of 19 years

11. Further, from perusal of the testimony of victim, it is evident that prima facie no ingredient of Section 363 of 366A is made out.

12. Accordingly, the instant Interlocutory Application is allowed.

13. In view thereof, the appellant, named above, is directed to be released on bail on furnishing bail bond of Rs.10,000/