The prosecution must establish the victim's age, and the defense must proactively challenge it; failing which the presumption of age stands.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE PRAVEEN KUMAR ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

4 21-01-2026 Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

2. Despite of service on respondent No.2, she has chosen not to enter appearance in the matter.

3. The prosecution case is based on the written information furnished by the mother of the victim girl, who alleged that her daughter (‘X’), aged about 14 years, had left her house for going to studies, but she has been kidnapped by one Ravi Kumar, aged about 24 years, son of Anil Sah (the appellant).

4. It appears that the victim girl was recovered after eight days. Her statement under Section 164 of the Cr.P.C. was recorded before a learned Magistrate on 08.09.2022. In her statement, she revealed that this appellant had called her over telephone and threatened her that if she would not come to meet him then her brother would be killed, whereafter she had gone to meet him. The appellant had taken her away to Dasrathpur from where she was taken to Jamalpur. She has further stated that at Jamalpur, she stayed with the appellant for eight days, where the appellant forcibly established physical relationship with her. She denied to have married the appellant.

5. Learned counsel for the appellant submits that the victim girl has not submitted herself for medical examination, however, her age has been proved on the strength of the deposition of PW 5, who is the Headmistress of the Utkramit High School, Dharhara South-I. In course of his submissions, learned counsel for the appellant submits that the prosecution has not proved the age of the prosecutrix/victim, therefore, the conviction and sentencing of the appellant under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) cannot sustain at all.

6. On the other hand, learned Additional Public Prosecutor for the State submits that it is the consistent case of the prosecution that the victim was studying in the Government School at Dharhara. In her deposition, the victim has herself stated about her date of birth and the school in which she was studying, but the defence never questioned her or any other prosecution witness with respect to the age of the victim. Victim herself deposed as PW 3 and said that her date of birth is 01.04.2008, but the defence did not question this statement of the victim or suggested otherwise to create any dent in the prosecution story. It is further submitted that the age of the victim has been duly proved, the presumption under Section 29 of the POCSO Act would be attracted and the defence has failed to rebut the said presumption in accordance with law by way of preponderance of possibility to show his innocence.

7. Having regard to the entire facts and circumstances, the material available on record, which we have prima facie gone through, and on finding that the victim girl has consistently alleged forcible physical relationship established by the appellant and then the defence has never questioned the age of the prosecutrix, she being minor and the allegations are that of commission of sexual act with her, we are not inclined to grant privilege of suspension of sentence and release on bail to the appellant. The prayer is refused.

8. It is clarified that the observations made hereinabove are only prima facie and tentative in nature for purpose of consideration of bail of the appellant which would not cause prejudice to either of the parties.

9. If the appeal is not listed within a period of one year from today, the appellant may file an application seeking early hearing of the appeal. (Rajeev Ranjan Prasad, J)

(Praveen Kumar, J)