The prosecution must provide substantial proof of a prosecutrix's age when applying provisions of POCSO Act, as mere school records are not sufficient.

Heard on I.A No.789/2025, which is first application under Section

430 of BNSS, 2023 for suspension of sentence filed on behalf of appellant Pappu@Kartik.

2. The appellant has been convicted under Section 363 , 366 of IPC and Section 5(L)/6 of POCSO Act and sentenced to undergo R.I for 1 year, 3 years, 20 years and fine of Rs.1000/-, Rs.1000/-, Rs.3000/- with default stipulation.

3. On 6/5/2025, this Court directed for verification of the no objection application filed by the prosecutrix by S.H.O Police Station, Talen District Rajgarh. A verification report has been filed in this regard, where the same has been found to be true. As per the prosecution case, it is alleged that the prosecutrix was abducted and was subjected to rape by the appellant.

4. Counsel for the appellant argued that as per the testimony of prosecutrix/PW-2 it is evident that she had gone to a different village alongwith the appellant and stayed for about 1 month. It is further argued that out of their relationship there is one female child who is aged more than 1 year.

Signature Not Verified Signed by: PRAMOD

5. Counsel for the State opposed the prayer and submits that age of the prosecutrix has been found to be 16 years 6 months as per the date of birth recorded in the scholar register.

6. Counsel for the complainaint has pleaded no objection on behalf of the prosecutrix who has attained majority.

7. After hearing learned counsel for the parties and from perusal of the record we find that the prosecution has not produced any record to show that on what basis the date of birth of the prosecutrix was recorded in the scholar register. In a recent judgment passed by co-ordinate bench of this court in the case of Tijubai @ Omvati Bai and ors Vs. State of MP reported in 2025(1) MPLJ (Cri) 75, the Division Bench held that if the date of birth of the prosecutrix in the school register is recorded on the guess of a person, who made entry of the date of birth, the same is not sufficient to prove the age of the prosecutrix. The prosecution has to prove the age of the prosecutrix that she is below 18 years by adducing cogent material. Further considering the testimony of the prosecutrix and the no objection pleaded by her in the appeal which has been duly verified and also the fact that there is one female child aged more than 1 year out of the said relationship, we are of the considered opinion that the present application deserves to be allowed. 8. Considering the same, the present application is allowed. The jail sentence of appellant Pappu@Kartik is suspended upon his depositing the fine amount, if not already deposited, and on furnishing a bail bond of Rs.50,000/-(Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the trial court for his appearance before the Registry of Signature Not Verified Signed by: PRAMOD this Court on 11/11/2025 and on subsequent dates as may be fixed in this behalf by the Registry.

9. With the aforesaid, I.A No.789/2025 is allowed and disposed of.