Consent is irrelevant under the POCSO Act; any sexual act with a minor is punishable irrespective of alleged consent due to the presumptive age of consent being set at 18.

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD -------

For the Appellant : Mr. M.I. Khan, Advocate For the Respondent : Mr. Sanjay Kumar Srivastava, APP ------

Order No.10/Dated: 16^th January, 2025 I.A. No. 5203 of 2024

1. The instant interlocutory application has been filed under Section 389 (1)

of the Cr.P.C for keeping the sentence in abeyance in connection with the judgment of conviction dated 15.02.2024 and order of sentence dated 16.02.2024 passed by the learned Additional Sessions Judge-1-cum- Special Judge (POCSO), Lohardaga in connection with Special POCSO Case No.30 of 2022, whereby and whereunder, the appellant has been convicted under section 363, 366, 376(3) of the IPC and under Section 6 of POCSO Act and sentenced to undergo RI for 5 years and a fine of Rs.5,000/- for the offence under section 363 of the IPC and in default of payment of fine further directed to undergo imprisonment for one month, RI for 7 years and a fine of Rs.5,000/- for the offence under section 366 of the IPC and in default of payment of fine further directed to undergo imprisonment for one month, RI for 20 years and a fine of Rs. 25,000/- for the offence under section 376(3) of the IPC and in default of payment, further directed to undergo imprisonment for three months and all the sentences will run concurrently. However, no further sentence is awarded to the appellant under section 6 of the POCSO Act in view of section 42 of POCSO Act.

2. It has been contended on behalf of the applicant that it is a case where the FIR has been lodged after lapse of 13 days and the testimony of the victim, who has been examined as PW1 during the trial, has not supported by the testimony of the medical witness, the doctor, who has been examined as PW7.

3. The second argument has been advanced on behalf of the applicant that the victim has not supported the prosecution version in her statement recorded under section 164 Cr.P.C.

4. The third argument which has been advanced that even the prosecution story will be taken into consideration to be true in its entirety, then it would be evident therefrom that it is a consensual physical relationship having been established by the applicant with the victim and, as such, no case is made out under section 6 of the POCSO Act.

5. While, on the other hand, Mr. Sanjay Kumar Srivastava, learned APP appearing for the respondent-State of Jharkhand has vehemently opposed the prayer for suspension of sentence.

6. It has been contended by the learned APP by referring to the statement of victim (PW1) who has fully supported the prosecution version while recording her statement under section 164 Cr.P.C as also in her testimony as PW1 in course of the trial.

7. It has been contended that since the prosecution version is fully supported by her evidence as PW1 and, in the instant case, since the FIR has been instituted after lapse of 13 days of the said occurrence, therefore, in such circumstances the testimony of doctor is immaterial.

8. So far as the third argument as has been advanced by the learned counsel for the applicant of consensual physical relationship having been established by the applicant with the victim is concerned, the same is not applicable as the conviction is also under section 6 of the POCSO Act where the concept of consensual physical re