Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Pat) 3060

PATNA HIGH COURT
JITENDRA KUMAR, J
Rambabu Prasad Sah @ Rambabu Prasad – Appellant
Versus
The State of Bihar – Respondent
CRIMINAL APPEAL (SJ) No.2234 of 2023

Advocates:
For the Appellant/s:Mr. Ajay Kumar Thakur, Advocate, Mrs. Vaishnavi Singh, Advocate, Mr. Ritwik Thakur, Advocate
For the Respondents:Mr. Binay Krishna, Spl. P.P., Mr. Gopal Jha, Advocate

The prosecution bears the burden of proving majority, and the absence of key documentation can undermine a conviction under the POCSO Act.

Headnote:In the context of CRIMINAL APPEAL (SJ) No.2234 of 2023, the appellant was convicted under Section 376 IPC and Section 4 of the POCSO Act, leading to a sentence of 10 years' rigorous imprisonment and a fine. The appellant contended that the prosecution failed to prove the minority of the victim, critical under Section 94 of the J.J. Act, as no school certificates were furnished, thus affecting the credibility of the case. The court framed the issues surrounding the age of the victim and the adequacy of proof under the POCSO Act, emphasizing the necessity of meeting the standard of proof required in criminal jurisprudence. The final outcome included a suspension of the appellant's sentence, allowing for bail pending appeal.

Judgement Key Points

Key Points: - The appellant was convicted under Section 376 IPC and Section 4 of the POCSO Act and sentenced to 10 years of rigorous imprisonment and a fine of Rs. 20,000/- (!) . - The appellant argued that the prosecution failed to prove the victim's minority because no school certificates were brought on record to establish age (!) . - The appellant contended that without school certificates, the age determined by ossification test (showing 16 years) plus a two-year margin of error would make the victim 18, negating the POCSO presumption (!) (!) . - The appellant claimed the victim's competency test under Section 118 of the Evidence Act was not conducted before her testimony, casting doubt on her evidence (!) . - The appellant highlighted that clothes worn by the victim were seized but not exhibited, suggesting an adverse inference against the prosecution (!) . - The appellant noted the prosecution's medical evidence showed no sign of rape, despite the test being conducted on the date of occurrence (!) . - The court observed that the appellant had already served approximately four years and four months of the 10-year sentence (!) . - Considering the pendency of the appeal and the time served, the court suspended the execution of the sentence and directed the release of the appellant on bail (!) . - The bail was granted subject to the furnishing of a bond of Rs. 10,000/- with two sureties of the same amount (!) . - The case was listed for hearing in due course (!) .

What are the rights of an appellant to have their sentence suspended and be released on bail when the prosecution fails to prove the minority of the victim under the POCSO Act due to the absence of school certificates?

What is the legal standard regarding the margin of error in ossification tests used to determine a victim's age in POCSO cases?

What are the consequences for the prosecution if they fail to exhibit seized clothes of the victim or conduct a competency test under Section 118 of the Evidence Act prior to the victim's testimony?

CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR ORAL ORDER

5 20-01-2026 Heard learned counsel for the appellant, learned APP for the State and learned counsel for the Informant.

2. Learned counsel for the appellant is pressing the prayer, as made in the memo of appeal, for suspending the execution of sentence and release of the appellant on bail during pendency of the appeal submitting that the impugned judgment of conviction and order of sentence are not sustainable in the eye of law. He further submits that the appellant has been convicted under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act and he has been sentenced to R.I. for 10 years and fine of Rs. 20,000/- and in case of default of payment of fine, he was directed to undergo further simple imprisonment for six months.

3. Learned counsel for the appellant further submits that one of the foundational facts to prove the prosecution case under the POCSO Act is to prove the minority of the alleged victim. He further points out that as per the prosecution case, the alleged victim was a student of school. However, no educational certificates or school certificates whatsoever have been brought on record to prove the minority of the alleged victim, whereas as per Section 94 of the J.J. Act, the school certificates are relevant for determining the age of the victim and only in case there are no school certificates, the age of the victim is assessed on the basis of ossification test or any other medical tests. But as per the prosecution evidence, no school certificate has been brought on record and age of the alleged victim has been determined on the basis of ossification test, as per which she is about 16 years’

old.

4. He further submits that in case of such test in regard to the age, benefit of doubt goes to the accused and it is settled law that there is always margin of error up to two years. As such, if the margin of two years added to the age of the victim, as determined by ossification test, she comes to the age of 18 years and hence, the prosecution case under the POCSO Act fails and the presumption under Sections 29 and 30 of the POCSO Act is not available to the prosecution. The case of the prosecution has to be proved as per general criminal jurisprudence which provides that the prosecution case has to be proved beyond all reasonable doubts during the trial.

5. He further submits that as per the prosecution evidence, the alleged victim is shown as 13 years of age, but prior to her evidence, her competency test, as required under Section 118 of the Evidence Act , has not been done by learned Trial Court. Hence, the whole evidence of the alleged victim comes under cloud and her evidence cannot be considered for the sake of fair trial.

6. He further submits that as per the police, the clothes of the victim were seized, which were worn by her, but the same has not been exhibited. Hence, adverse inference may be drawn against the prosecution. Adverse inference can be also drawn against the prosecution in view of withholding the school certificates of the victim for determining the age. He further submits that as per the medical evidence, there was no sign of rape, though the medical test was conducted on the victim just on the date of occurrence.

7. Hence, learned counsel for the appellant submits that in view of such facts and circumstances, the impugned judgment of conviction and order of sentence cannot be sustained.

8. He also submits that the appellant has already undergone about four years and four months imprisonment, out of total 10 years of rigorous imprisonment as awarded against him.

9. However, Ld. APP for the State and learned counsel for the informant oppose the prayer of the Appellant for bail submitting that the victim is 13 years of age at the time of occurrence and this is one of the heinous crimes and as per the evidence on record, the prosecution has proved its case beyond all reasonable doubts.

10. Considering the aforesaid facts and cir

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