Consent has no legal value in cases of minors under the POCSO Act; conclusive age evidence must come from valid and verified sources.

JUDGMENT :

I.A. No. 11918 of 2024:

1. The instant interlocutory application has been filed under Section 430 (1)of the BNSS , 2023 for keeping the sentence in abeyance in connection with the judgment of conviction dated 05.08.2024 and order of sentence dated 06.08.2024 passed by the learned Special Judge-POCSO Act, Dhanbad, in connection with Spl. (POCSO) Case No.44 of 2022 arising out of Govindpur P.S. Case No. 95 of 2022, whereby and whereunder, the appellant has been convicted under Section 376(2)(n) of the INDIAN PENAL CODE for rigorous imprisonment for 20 years along with a fine of Rs. 10,000/- under Section 6 of POCSO Act and, the Court has further ordered that in default of payment of fine, the appellant shall further undergo additional imprisonment for one month.

2. It has been contended by the learned counsel appearing for the appellant that if the testimony of the victim will be taken into consideration in entirety, it will be said to be the consensual relation as such there is the absence of ingredient of Section 376.

3. It has been submitted that so far as the order of conviction has passed under Section 6 of the POCSO Act is concerned, it will also not be applicable reason being that the age of the victim has not to be assessed in terms of the provision of Section 94 of the J.J. Act.

4. Learned counsel appearing for the appellant has further submitted that the certificate said to be issued by the Head Master of the concerned school, where the victim had been studied, had been produced but the same had not been identified by the Head Master rather being identified by the Investigating Officer due to which the said document cannot be said to be the conclusive proof of the age and as such, in absence of the conclusive proof of the age, even the ingredient of POCSO Act is not available.

5. The learned counsel appearing for the appellant, based upon the aforesaid ground, has therefore submitted that it is a fit case for suspension of sentence while the appeal is pending.

6. While, on the other hand, learned Public Prosecutor appearing for the respondent State has vehemently opposed the prayer for suspension of sentence.

7. It has been contended that the victim has fully supported the prosecution version and she being a minor since has been subjected to sexual assault and as such the judgment of conviction passed by the learned trial Court cannot be said to be suffer from an error.

8. We have heard the learned counsel for the parties and gone across the finding recorded by the learned trial court in the impugned judgment as also the testimony available in the Trial Court Records and the other exhibits available as therein.

9. This Court, in order to appreciate the arguments advanced by the learned counsel appearing on behalf of the parties, has gone through the testimony of the victim and found therefrom that she herself had admitted the fact that she, on pretext of false promise of the marriage, was subjected to sexual assault or rape.

10. The question of the consensual relationship is the main argument advanced by the learned counsel appearing for the appellant.

11. This Court is conscious of the fact that in case a minor, the consent has got no meaning, but for that the conclusive proof of the age is to be based upon the principle as laid down under Section 94 of JJ Act, 2015 is required.

12. It is evident from the testimony of the Investigating Officer that the age of the appellant which has been assessed to be more than 17 years which is based upon the certificate issued by the Head Master of the concerned school, which has been marked as Exhibit P-4.

13. The said document has been exhibited by the Investigating Offi