The court established that in cases of juvenility, the benefit of the doubt should favor the accused, and direct evidence from the victim is paramount in determining the facts.

JUDGMENT

Meenakshi Madan Rai, J. - The Appellant preferred an appeal against the impugned Judgment, dated 20-07-2023 and Order on Sentence, dated 25-07-2023, of the Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim (hereinafter, the 'Special Judge'), in ST (POCSO) Case No.11 of 2021 (State of Sikkim vs. Ashish Manger), by which the Appellant was convicted under Sections 9(l), 9(m), 9(n), all punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, 'POCSO Act'). He was sentenced to undergo rigorous imprisonment for five years each, under each of the sections convicted, which were ordered to run concurrently, with fine imposed under each of the sections and default clauses of imprisonment.

2. During the course of hearing, Learned Counsel for the Appellant raised the contention that the Learned Special Judge failed to notice during the trial that the Appellant was a minor at the time of offence. Pursuant thereto, an application under Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter, 'JJ Act'), dated 06-11-2023, came to be filed by the Appellant, being I.A. No.01 of 2023 in the said appeal. It was urged by Learned Counsel for the Appellant that the date of birth of the Appellant is 31-03-1998 and the offence was committed in the year 2015 as appears in the Section 164 of the Code of Criminal Procedure, 1973 (hereinafter, 'Cr.P.C.') statement of the victim and from the charges framed against the Appellant by the Learned Trial Court on 13-08-2021, rendering him a minor at the time of offence. Consequently, the matter was taken up on 07-11-2023 and on the same date, this Court inter alia ordered as follows;

' 6. Due consideration has been accorded to the submissions put forth. It is clear that Section 9 of the J.J. Act, more especially, the Proviso to the Section lays down that claim of juvenility may be raised before 'any' Court and it shall be recognised at any stage, even after the disposal of the case and such a claim shall be determined in accordance with the provisions of the Act and the Rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

7. At this juncture, it is relevant to look at Section 9(2) of the J.J. Act, which provides as follows;

'9. Procedure to be followed by a Magistrate who has not been empowered under this Act-(1)................

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

8. In light of the facts and circumstances elucidated hereinabove, the legal provisions referred to and in terms of the directions of the Supreme Court in Karan alias Fatiya vs. State of Madhya Pradesh [2022 scc OnLine sc 1887], it is hereby ordered as follows;

(i) The copies of the Birth Certificate and Transfer Certificate be forwarded to the Learned Trial Court concerned by 08-11-2023 in physical form as well as in digitised form.

(ii) The Appellant shall be produced before the Learned Trial Court concerned on 16-11-2023.

(iii) The Learned Trial Court shall take steps to consider whether the Appellant was a juvenile on the date when the offence is said to have been committed.

(iv) Towards this end, the Learned Trial Court, if so required, may call for and consider all relevant documents as well as have the facility of medical check-up of the Appellant as provided by law.

(v) The Report pertaining to such enquiry shall be submitted before the Registry of this Court within four weeks from today.'

(i) In compliance