The absence of conclusive proof of the victim's age and the consensual nature of the relationship justified the suspension of the sentence under the POCSO Act.

ORDER :

IA No.5404 of 2024

This instant interlocutory application has been filed for suspension of sentence against the Judgment of conviction dated 12.10.2023 and order of sentence dated 13.10.2023 passed by learned Additional Sessions Judge-I-cum-Special Judge (POCSO) Act, West Singhbhum at Chaibasa, in connection with Special POCSO Case No. 02 of 2020 and Mahila and Child Protection P.S. Kiriburu Camp Noamundi Case No. 02 of 2019 whereby and whereunder the appellant has been convicted under Sections 376 & 366 of the IPC and under Section 6 of POCSO Act and sentenced to undergo R.I. for 21 years for the offence punishable under Section 6 of the POCSO Act and also directed to pay fine of Rs. 25,000/- and in case of default of payment of fine, further directed to undergo S.I. for one year. No separate sentence was given under Section 376 & 366 of the IPC in view of the provisions of Section 42 of the POCSO Act.

2. It has been contended on behalf of the appellant that although the conviction is under Sections 376 & 366 of the Indian Penal Code as also under Section 6 of the POCSO Act but so far as the conviction under Section 6 of the POCSO Act is concerned, the same cannot be said to be tenable in view of the fact that there is no conclusive proof of the age, rather, as per the opinion of the Doctor, she has been assessed to be 18 – 19 years, as such, the victim is not coming under the word of definition of child as defined under Section 2(d) of the POCSO Act, 2012.

3. Further the submission has been made so far as the conviction under Sections 366 & 376 of the IPC are concerned, no ingredient is being attracted reason being that both the appellant and the victim are in the talking term as also living as a wife and husband hence at best it can be said to be consensual establishment of the physical relationship in between the both.

4. Learned counsel for the appellant based upon the aforesaid grounds has submitted that it is therefore a fit case for suspension of sentence.

5. While on the other hand, learned Special Public Prosecutor appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence. It has been contended that if the testimony of the victim will be taken into consideration then it would be evident that the prosecution has been able to substantiate the charge and as such it is not a fit case for suspension of sentence.

6. We have heard learned counsel for the parties and gone across the findings recorded by the learned trial court in the impugned Judgment as also the testimonies of the witnesses available in the LCR and other material exhibits available therein.

7. It is the admitted fact, as it would be evident from the material available in record as per the LCR that the age has not been proved as provided under Section 94(1) and (2) of the JJ Act, 2015. However, the plea has been taken that no certificate either of the birth certificate issued by the School or by a corporation or municipal authority have been brought on record in course of the trial. Learned Trial Court however has relied upon the version of the Doctor who has assessed the age of the victim on the basis of the radiological examination in between the age of 18-19 years which can be said to be as per the provision made under clause 2(iii) of Section 94 of the JJ Act, 2015. The age therefore as per the evidence of the Doctor is in between 18-19 years. So far as attracting the ingredient under Sections 376 & 366 of the IPC is concerned, it is evident from the testimony of the victim who herself admitted the fact that she was in love with the appellant and accepting the appellant as an husband.

8. This Court considering the aforesaid fact is of the view that the appellant has been able to make out a case for suspension of sentence.

9. Accordingly, the Interlocutory Application stands allowed.

10. In consequence, thereof, the appellant, named above, is directed to be released on bail on furnishing bail bond of Rs.25,000/- (Rupees