The assessment of age under the POCSO Act requires definitive documentation, and without it, establishing culpability is not achievable; consent plays a critical role in applying IPC provisions.

JUDGMENT :

I.A. No. 2218 of 2025:

1. The instant interlocutory application has been filed for keeping the sentence in abeyance in connection with the judgment of conviction dated 17.08.2024 and order of sentence dated 19.08.2024 passed by the learned Additional Sessions Judge-I-Special Judge, Lohardaga in connection with Special POCSO Case No. 06 of 2020 arising out of Senha P.S. Case No. 03/2020, whereby and whereunder, the appellant has been convicted under Section 4 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 20 years and a fine of Rs. 20,000/- and in default of payment of fine, he has to further undergo for 3 months’ imprisonment; under Section 363 of IPC sentenced to undergo Rigorous Imprisonment for 4 years with a fine of Rs. 5,000/- and in default of payment of fine he has to further undergo the imprisonment of 15 days; under Section 366 of IPC sentenced him to undergo Rigorous Imprisonment for 6 years with a fine of Rs. 10,000/- and in default of payment of fine, he has to further undergo imprisonment for 1 month.

2. It has been contended by the learned counsel appearing for the appellant that it is a case where no case either under Section 376 of IPC or Section 4 of the POCSO Act is made out, since, there is no conclusive evidence of assessment of age of the victim-girl.

3. The age has been assessed by the Medical Board wherein the age has been assessed to be in between 17 to 18 years.

4. The learned counsel has further submitted that since the ingredient of POCSO Act is not there and in view of the testimony of the mother and father of the victim where it has been deposed by them that since the appellant refused to marry with the victim, therefore, the present case has been instituted and in that view of the matter, it cannot be said that the ingredient of Section 376 is available.

5. Learned counsel, based upon the aforesaid ground, has submitted that it is therefore a fit case where the sentence is to be suspended while the appeal is lying pending.

6. While, on the other hand, Mr. Abhay Kr. Tiwari, learned Additional Public Prosecutor appearing for the State has vehemently opposed the prayer for suspension of sentence.

7. It has been contended that the Medical Board since has been constituted and there is no rebuttal with respect to the assessment of the age having been raised at the time of trial and such it is not available for the appellant to raise the issue by a questioning the assessment regarding the age. The victim since has been assessed to the age of 17 years which is below the age of 18 years and hence the ingredient of Section 4 of the POCSO Act is available wherein there is no meaning of any consent of the child.

8. Learned counsel appearing for the State, based upon the aforesaid ground, has submitted that it is therefore not a fit case where the sentence is to be suspended.

9. 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 of the witnesses available in the Lower Court Records and the other relevant documents exhibited therein.

10. This Court has examined rival submissions advanced by the learned counsel appearing for the parties and the admitted fact as would be evident from the material available in Trial Court Record that the basis of the assessment of the age of the victim is the report of t