1. Heard the learned counsel for the applicant, the learned APP for
respondent/State and Mrs. Devika Patil, learned counsel appointed for
respondent No. 2/victim.
2. Applicant/appellant is convicted by the learned Special Judge
(POCSO) & Additional Sessions Judge, Dhule vide judgment and order dated
22.2.2024 passed in Special Case No. 49/2026. The relevant part of
2) He is sentenced to suffer Rigorous Imprisonment for
ten years and to pay fine of Rs.1,00,000/- (Rs. One Lakh
only) in respect of offence punishable under Section 6 of
Protection of Children From Sexual Offences Act, 2012. In
default of payment of fine, he is further sentenced to suffer
Rigorous Imprisonment for one year.
3) He is sentenced to suffer Rigorous Imprisonment for
five years and to pay fine of Rs.10,000/- (Rs. Ten Thousand
only). In default of payment of fine, he is further sentenced
to suffer Rigorous Imprisonment for two months in respect
of offence punishable under Section 420 of Indian Penal
Code.
4) Since sentence is awarded under Section 6 of POCSO
Act, separate sentence for the offence punishable under
Section 376(2) of IPC and Section 4 of POSCO Act, 2012 is
not awarded in view of Section 42 of POCSO Act.
5) ......."
3. This Court by order dated 30.07.2025 has recorded the submissions
of the learned counsel for the applicant as under :-
"2. The learned counsel for the applicant has pointed out the school
leaving certificate of the victim which is at page No. 65 wherein her
date of birth is mentioned as 19.11.1999. The learned counsel submits
that the said document could not have been relied upon by the Trial
Court in absence of deposition of the person who has taken the entry
in respect of date of birth of the victim. For that purpose, the learned
counsel has relied upon para No. 14 of the judgment of the Hon'ble
Supreme Court in the case Manak Chand alias Mani Vs. State of
Haryana reported in 2023 SCC OnLine SC 1397, which is as under :-
"14. This Court in Birad Mal Singhvi V. Anand Purohit , 1988
Supp SCC 604 had observed that the date of birth in the register
of a school would not have any evidentiary value without the
testimony of the person making the entry or the person who gave
the date of birth.
"14. ...The date of birth mentioned in the scholar's register
has no evidentiary value unless the person who made the
entry or who gave the date of birth is examined. The entry
contained in the admission form or in the scholar's register
must be shown to be made on the basis of information given
by the parents or a person having special knowledge about
the date of birth of the person concerned. If the entry in the
scholar's register regarding date of birth is made on the
basis of information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge of the
date of birth, such an entry will have no evidentiary value."
3. The learned counsel submits that in the present case,
ossification test of the victim has been conducted and in terms of the
ossification test, the age of the victim is shown to be 18 year (-) one
year or (+) one year. The learned counsel submits that in POCSO case
the age of the victim should be considered at higher side and from
thereafter two years margin of error has to be considered to determine
the age of the victim. For that purpose, the learned counsel has relied
upon the judgment of Delhi High Court in the case of Court on its Own
Motion Vs. State of NCT of Delhi reported in 2024 SCC OnLine Del
4484, more particularly para No. 1 wherein questions of law are
formulated and the answers given at para No. 46, as under :-
"46. As an upshot of our foregoing discussion, the
Reference is answered as under: -
(i) Whether in POCSO cases, the Court is required to
consider the lower side of the age estimation report, or the
upper side of the age estimation report of a victim in cases
where the age of the victim is proved through bone age
ossification test?
Ans: In such cases of sexual assault, wherever, the
court is called upon to determine the age of victim based on
'bone age ossification report', the upper age given in
'reference range' be considered as age of the victim.
(ii) Whether the principle of 'margin of error' is to be
applicable or not in cases under the POCSO Act where the
age of a victim is to be proved through bone age ossification
test.
Ans: Yes. The margin of error of two years is further
required to be applied."
4. The learned APP as well as the learned counsel appointed for
respondent No. 2 opposed the application filed for suspension of substantive
by submitting that the incident in question happened 2 to 3 years prior to
the registration of the offence and at the relevant time the victim was
minor. The applicant failed to perform marriage with victim even after victim
delivered the child and therefore, the case is registered against the
applicant for aforesaid offence.
5. Considered the above submissions and perused record produced
before this Court. In the deposition, PW 2 - Dr. Ramesh has stated that
history is narrated by the victim that she was having affair with applicant
five years back and she had sexual intercourse with applicant prior to two
years of 29.08.2016 when she was referred to medical examination.
Ossification test in this case is conducted wherein doctor has opined that
the age of the victim is 18 years (-) one year or (+) one year. As such, age
of the victim at the time of offence would be 18 years (-) one year or (+)
one year. In terms of judgment of Delhi High Court in the case of Court on
its Own Motion Vs. State of NCT of Delhi reported in 2024 SCC OnLine Del.
4484, margin of error of two years is required to be applied. As such, at the
relevant time, the victim is possibly major.
6. Having considered the above aspects of the matter, it appears that
the applicant is in jail from last 18 months and sentence of 10 years is
imposed on the applicant by the trial Court. It is stated that fine amount is
already deposited by the applicant in trial Court. In view of the above, I
hold that applicant has arguable case on merits on the age of the victim.
The appeal will take its own time. No purpose would be served by keeping
the applicant behind bars till the conclusion of the appeal. Hence,
substantive sentence needs to be suspended.
7. In view of the discussion made above, the application filed for
suspension of substantive sentence is allowed and disposed of. The above
substantive sentence imposed by the trial Court on the applicant is
suspended. Applicant shall be released on bail on such terms and conditions
which the trial Court may deem fit and proper.
8. Appeal is admitted. After admission, the learned APP waives service
of notice for respondent/State and Mrs. Devika Patil, learned counsel waives
service of notice for respondent No. 2.
9. Call R. & P.
( ARUN R. PEDNEKER, J. )
ssc/
