Sanjay Kumar Saw vs The State Of Jharkhand
2025 Latest Caselaw 2692 Jhar

Jharkhand High Court

Sanjay Kumar Saw vs The State Of Jharkhand on 18 February, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Sanjay Prasad

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 1245 of 2024
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Sanjay Kumar Saw ... ... Appellant Versus The State of Jharkhand ... ... Respondent

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Appellant : Mr. A.K. Kashyap, Sr. Advocate Mr. B.R. Rochan, Advocate For the Respondent : Mrs. Nehala Sharmin, A.P.P

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th Order No. 05: Dated 18 February, 2025 Per Sujit Narayan Prasad, J:

I.A. No. 682 of 2025

Prayer

1. The instant interlocutory application has been filed on

behalf of appellant under Section 430 of the BNSS, 2023 for

suspension of sentence dated 29.08.2024 passed by the

learned Additional Sessions Judge-I-cum-Special Judge,

POCSO, Ramgarh in Special POCSO Case No. 23 of 2022,

whereby and whereunder the appellant has been convicted

for the offence punishable under Section 4 of the POCSO Act

and sentenced to undergo Rigorous Imprisonment for 14

years and to pay a fine of Rs. 20,000/-; further convicted

under Section 366 of the Indian Penal Code and sentenced to

undergo Rigorous Imprisonment for 07 years and to pay a

fine of Rs. 10,000/-. No separate sentence has been passed

under Section 376 of the Indian Penal Code; however, all the

sentences have been directed to run concurrently. Further,

the fine amount of Rs. 20,000 imposed under Section 4 of

POCSO Act and the fine amount of Rs. 10,000/-imposed

under Section 366 of Indian Penal Code will be paid to the

victim to meet medical expenses and rehabilitation and in

default of payment of fine of 20,000/- imposed under Section

4 of POCSO Act the appellant will undergo two years extra

R.I. and in default of payment of fine of Rs. 10,000/-imposed

u/s 366 of IPC, the appellant will further undergo one year

R.I.

Prosecution Case:

2. The prosecution case, as per the version narrated by the

informant, namely Nemi Chand Sao, who is father of the

victim minor girl aged about 16 years, in brief, is that in the

morning of 15.07.2022 he along with his wife went to village

where his victim minor daughter aged about 16 years and

three kids resides. On 15.07.2022 at about 11:00 P.M in the

night one Sanjay Kumar Saw who runs a mess in the name

and style as Gangotri Mess in New Market, P.T.P.S, Patratu

telephoned his daughter and forcibly taken away his

daughter by his motorcycle no. JH-01BU-8004 from his

house. Vikash Kumar and Rakesh Kumar have seen him at

main road at the time of fleeing and they chased him and

mobile phone of both of them was found to be switched off

and both mobiles were in the custody of Sanjay Kumar Saw.

Anyhow Sanjay Kumar Saw giving dodge succeeded in fleeing.

3. After one hour of searching both of them reached at the

house of Sanjay Kumar Saw by identification of the number

of motorcycle where his motorcycle was standing outside the

house and the door of the house was closed. They knocked

the door of the house of Sanjay Kumar Saw (applicant herein)

but he did not open the door of his house and after several

efforts Sanjay Kumar Saw opened and talked arrogantly. At

that time no family member of Sanjay Kumar Saw was

present in the house.

4. Thereafter, both of them entered into the house of

Sanjay Kumar Saw and started searching victim minor girl

aged about 16 years but she did not find anywhere in the

house. Lastly, they heard the noise under the bed (Deewan).

Thereafter, when they opened the box of bed then they found

that victim minor girl found in nude position. Thereafter, they

took out the victim minor girl from the bed and wear the

cloth. In the meantime, they gave information to the Patratu

P.S about the occurrence. Both of them reached to New

Market from tempo where PCR Van of mobile reached there

and apprehended the Sanjay Kumar Saw.

5. On getting information the informant reached at 7:00

Α.Μ and he asked his minor daughter about the incident

then she disclosed that Sanjay Kumar Saw give threatening

and forcibly abducted her and committed rape with her and

also teased her genital organs and also attempted to kill her.

It has further been stated that due to getting in the box of the

bed the victim became unconscious and is facing trouble in

breathing in the box.

6. On the basis of written report of the informant, Patratu

P.S. case no. 135 of 2022 dated 16.07.2022 was registered

and after completion of investigation police submitted charge

sheet against the accused/applicant under Sections 366-A,

376 of the IPC and under Sections 4 and 8 of the POCSO Act.

7. In order to substantiate the prosecution case,

prosecution has examined altogether nine witness witnesses

in Session Trial and the learned trial court after appreciation

of evidence has found the charges levelled against the present

applicant proved beyond reasonable doubt and accordingly

the present applicant has been convicted and sentenced as

aforesaid.

8. The instant interlocutory application has been preferred

by the applicant/appellant with the prayer for the suspension

of sentence during pendency of the instant appeal.

Submission on behalf of appellant:

9. Learned senior counsel for the appellant, questioning

the delay in lodging the FIR, has submitted that the date of

occurrence is said to be at 11.00 pm night of 15.07.2022 but

the FIR was instituted at 5.30 on 16.07.2022. Even as per the

version, as narrated in the FIR that the PCR has reached to

the place of occurrence in the night of 15.07.2022 itself, there

is no registration of FIR on the same date and the FIR has

been instituted only on 16.07.2022, which shows the falsity

of the prosecution version.

10. It has been contended on behalf of appellant that out of

the nine witnesses examined in this case, even P.W. 1

[mother], P.W. 3 [brother], P. W. 5 [father], who are the family

members as also P.W. 4, who is friend of the informant have

given contradictory statements and their statements are not

reliable at all.

11. It has further been submitted that from the testimony of

the victim itself, it appears that she is the consenting party

and the appellant has never forcibly kidnapped her and

committed rape upon her, as would appear from paragraph

28 of her cross-examination wherein she has stated that she

did not raise alarm while she was forcibly made to sit on the

motor-cycle by the appellant. Further, at paragraph 40 of her

cross-examination she has stated that after sitting for 10

minutes on the motorcycle she reached the house of the

appellant.

12. Furthermore, the doctor [P.W. 7], who has medically

examined the victim girl on 17.07.2022 i.e., the next day after

the alleged occurrence, did not find any sign of rape or any

sign of external wound or foreign particle, which itself creates

doubt upon the case of the prosecution.

13. It has further been submitted that the age of the victim

cannot be said to be conclusively proved since the same is

not in consonance with the parameters laid down under

Section 94 of the JJ Act. Argument has been advanced that

the principal of the concerned school who has been examined

as P.W. 8, has issued the certificate and corroborated the

certificate given by him based upon the admission register.

But the admission register is in the hand-script of one Vishal

Kumar, who has not been examined.

14. Furthermore, the certificate which has been proved by

the concerned principal [P.W. 8] is having not been any

corroboration to the transfer certificate since the transfer

certificate is not on record i.e., in the admission register and

to that effect a specific question has also been put which has

been replied by the I.O. in cross-examination wherein he has

deposed that the date of birth referred in the attendance

register is on the basis of transfer certificate and there is no

reference of the transfer certificate in the said admission

register in absence of any column to that effect therein, which

itself creates doubt regarding determination of age of the

victim.

15. Further, the issue of age has also been raised on the

ground that the as per the version of the P.W. 8 as also the

father of the victim, the victim got admission in the present

school and at that time the date of birth has been referred

but there is no detail/reference of the date of birth in absence

of any document said to be there while the victim was in

another school.

16. Submission therefore has been made that no offence

under the provisions of POCSO Act is attracted as also there

is no ingredient of Section 366 of 376 of the Indian Penal

Code.

17. Learned counsel for the appellant based upon the

aforesaid ground has submitted that it is a fit case for

suspension of sentence.

Submission of the learned APP for State/respondent

18. While on the other hand, learned APP appearing for the

State has vehemently opposed the prayer for suspension of

sentence and submitted that the victim is minor, which has

conclusively been proved as would be evident from the

testimony of P.W. 8, who has examined the certificate issued

by the principal of the concerned school.

19. It has been contended that the said certificate has not

been objected at any time and even no objection has been

raised in course of the trial. Therefore, the question of

applicability of 94 of the JJ Act with respect to the veracity of

the certificate issued by the concerned principal is having no

aid reason being that the principal of the concerned school

has certified the certificate upon the attendance register.

20. Learned counsel for the respondent, therefore, has

submitted that it is not a fit case for suspension of sentence.

Analysis

21. We have heard learned counsel for the parties and gone

across the finding recorded by the learned trial Court in the

impugned judgment as also the testimony of the witnesses as

available in the Lower Court Records.

22. Before adverting to the fact of the case it needs to refer

herein that, while exercising power of suspension of sentence

during pendency of appeal the Court has to see only the

prima-facie case.

23. The Hon'ble Apex Court in the case of Preet Pal Singh

vs. State of U.P., (2020) 8 SCC 645 has observed that there

is difference between grant of bail in case of pre-trial arrest

and suspension of sentence, post- conviction. In the earlier

case, there may be presumption of innocence, which is a

fundamental postulate of criminal jurisprudence, and the

courts may be liberal, depending on the facts and

circumstances of the case, however, in case of post-conviction

bail, by suspension of operation of the sentence, there is a

finding of guilt and the question of presumption of innocence

does not arise. For ready reference the relevant paragraph of

the aforesaid judgment is being quoted as under:

"35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 :

(2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC."

24. Thus, it is evident from the aforesaid judgment, that

during considering suspension of sentence which is the

postconviction stage, the presumption of innocence in favour

the accused cannot be available and at this stage, the Court's

only duty is to see that the prima-facie case is made out or

not as such the detailed appreciation of evidence is not

required at this stage.

25. Now adverting to the arguments advanced by learned

counsel for the parties, wherefrom it is evident that the

learned counsel for the applicant has emphasized his

argument on the issue of age of the prosecutrix and has

contended that the age of the victim cannot be said to be

conclusively proved since the same is not in consonance with

the parameters as laid down under Section 94 of the JJ Act.

Argument has also been advanced that the principal of the

concerned school has issued the certificate and corroborated

the certificate given by him based upon the admission

register, but the said admission register has been said to be

in the hand-script of one Vishal Kumar, who has not been

examined.

26. Per contra, the learned APP has contended that that the

victim is minor, which has conclusively been proved as would

be evident from the testimony of P.W. 8, who has examined

the certificate and the said certificate has not been objected

at any time and even no objection has been raised in course

of the trial. Therefore, the question of applicability of 94 of

the JJ Act with respect to the veracity of the certificate by the

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concerned principal is having no aid reason being that the

principal of the concerned school has certified the certificate

upon the attendance register.

27. This Court in order to appreciate the argument

advanced on behalf of the, parties primarily with respect to

the issue of age which is of paramount consideration in view

of the fact that the conviction is under Section 4 of the

POCSO Act, has gone through the POCSO Act where the

primary requirement to prove the commission of offence

under Section 4 of the POCSO Act is the juvenility of the

victim as per the provision of the POCSO Act wherein child

has been defined to be below the age of 18 years as

per Section 2(d) of the Act.

28. The first issue which arises for consideration is the age

of the prosecutrix therefore at this juncture core of

Section 34 of the POCSO Act requires to refer herein which

reads as under:

"(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 1[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

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(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a personas determined by it under sub-section (2) was not the correct age of that person."

29. Thus, as per mandate of Section 34 of POCSO Act, the

procedure of age determination has been laid down in the

Juvenile Justice Act, 2015 (Act 2015) wherein it has been

provided under Section 94 for determination of the age. For

ready reference, Section 94 of the Act, 2015 is being

reproduced as under:

94. Presumption and determination of age.

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest

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medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

30. Thus, the combined reading of both these provisions

makes it clear that in case there is any dispute as to the age

of the juvenile in the case of a child the Courts have to resort

to the procedure prescribed under Section

94 of the Juvenile Justice Act.

31. While determining the age, the Court has to first take

into account the date according to the birth certificate from

the school or the matriculation or equivalent certificate from

the concerned examination Board and in absence thereof the

Court will consider the birth certificate given by a corporation

or a municipal authority or a panchayat.

32. It is evident from the aforesaid provision that the

Section 94 of the Juvenile Justice Act makes it clear that

evidence such as date of birth certificate issued from the

school or the Matriculation certificate issued by the Board or

equivalent certificate from the concerned Examination Board,

if available, can be taken into consideration. Apart from this,

Birth Certificate given by the Corporation or Municipal

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Authority or Panchayat can be considered for determining the

age. In absence of such certificates, ossification test is

required to be conducted.

33. Further, Sub-section (3) of Section 94 states that the

age recorded by the Committee or the JJ Board to be the age

of the persons so brought before it shall, for the purpose of

the Act, be deemed to be the true age of that person. Thus,

there is a finality attached to the determination of the age

recorded and it is only in a case where reasonable grounds

exist for doubt as to whether the person brought before the

Committee or the Board is a child or not, that a process of

age determination by seeking evidence has to be undertaken.

34. The Hon'ble Apex Court in the case of Manoj v. State of

Haryana, (2022) 6 SCC 187 has held that the date of birth

is to be determined on the basis of material on record and on

appreciation of evidence adduced by the parties and the

medical evidence as to the age of a person, though a very

useful guiding factor, is not conclusive proof. The Relevant

paragraph of the said judgment is being quoted

hereinbelow:--

"22. This Court in a judgment in Babloo Pasi v. State of Jharkhand [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133] held that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It was held as under : (SCC p. 142, para 22)

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"22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence."

35. Further, the aforesaid aspect of the matter has been

also been considered by the Hon'ble Apex Court in the case of

P. Yuvaprakash vs. State Rep. by Inspector of Police,

2023 SCC OnLine SC 846 wherein it has elaborately ben

dealt with at paragraph-14 thereof which reads as under:

"14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document 5 which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar)

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had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence."

36. In the case of P. Yuvaprakash (supra), the Hon'ble

Apex Court had considered the offence under POCSO Act and

has observed that the school transfer certificate is not

acceptable evidence to prove the age of the victim.

37. It is also settled that if any certificate is being given from

the School concerned by the principal of the said school or

the institutional head, then, it is onus upon the prosecution

to get it proved by calling upon the author of the said

certificate.

38. Further, it is also settled that the evidence of the victim

or the prosecutrix is to be considered as the sole evidence for

conviction, but it depends upon that how much confidence is

to be transpired from the testimony of the prosecutrix or the

victim girl. If the confidence from the testimony of the

prosecutrix lacks, then other evidence is required to be seen

by the Court of law. Reference in this regard may be made to

the judgment rendered by the Hon'ble Apex Court in the case

of Sadashiv Ramrao Hadbe v. State of

Maharashtra, (2006) 10 SCC 92, wherein, it has been held

at paragraph-9 as under:--

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"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

39. Likewise, in the case of Raju v. State of Madhya

Pradesh, (2008) 15 SCC 133, it has been held by the

Hon'ble Apex Court at paragraph-10 & 11 as under: --

"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis

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for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

40. This Court based upon the aforesaid position of law and

coming back to the order impugned and the material

available on record has found that mandate of Section 94 of

the Act 2015 has been followed in the instant case.

41. After perusal of the deposition of PW-8 namely Ravindra

Ravidas (Principal of S.S +2 High School) it is evident that he

has stated in his examination-in-chief that he had joined in

SS+2 High School in the year 2010 as Assistant teacher.

From 03.11.2021 he worked there as Principal. As per the

entry register of Intermediate (Arts) for the session 2021-23

the minor victim girl who is student of Class-XI in his school

from 20.08.2021 which is registered in the school entry

register at page no. 27 at serial no. 27 and her date of birth is

mentioned as 10.05.2006 as per entry register which is in the

writing of clerk Vishal Kumar which he identified. Page no. 27

at serial no. 27 of the school entry register is marked as Ext.-

P6/PW8.

42. He has further testified that on that basis the date of

birth of victim minor girl was prepared on the police

application. It is the date of birth certificate issued by the

school on 30.07.2022 as per record her entry mentioned as

27/21 dated 20.08.2021 and her date of birth mentioned as

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10.05.2006 which is in his writing and signature and also

bears the seal of the school which he identified. The date of

birth certificate was marked as Ext.-P7/PW8.

43. During cross-examination in para 4 he has stated that

victim minor girl studied in his school from Class-IX. Prior to

that where she studied, he could not say because he had not

brought Class IX register. In paragraph 6 it has been stated

that date of birth of the victim mentioned as 10.05.2006. In

para 7 he has stated that this is my school letter pad. In para

9 of his testimony, the principal has deposed that it is true

that no letter number is mentioned in Ext.-7. He had copy of

Ext.-7. In para 10 he stated that he could not say on which

date Officer-in-Charge came to the school. In para 11 he

stated that on 03.11.2021 he took the charge of Principal.

44. Thus, it is evident that PW.8 is the Principal of S.S +2

High School, Patratu, who has produced Admission Register,

has mentioned in para 2 that on dated 20.08.2021 victim was

student of 11th class in his school and her date of birth

10.05.2006 has been mentioned in page no. 22 of Admission

Register. This witness has identified this document as P-

6/PW8. In para 3 he has identified date of birth certificate

issued by his school in which her date of birth has been

mentioned as 10.05.2006 which is marked as Ext. P-7/PW8.

It is evident from the record that the learned defence counsel

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has cross-examined him at length but nothing has been

brought on record contrary.

45. Further, PW2 who is the victim at para 4 of her

testimony has deposed that at the time of occurrence she was

16 years old and she was studying in 12th class in S.S+2

High School, Patratu. PW6 who is the I.O of this case after

taking the charge of investigation has deposed that he

collected the date of birth certificate from S.S High School,

Patratu. In para 3 of his testimony, he had deposed that on

24.07.2022 he applied for date of birth certificate in S.S. High

School, Patratu.

46. Thus, prima facie Prosecution has fully established that

the victim was minor on the day of occurrence.

47. The victim, who has been examined as P.W.-2, has

deposed that she was aged about 16 years at the time when

the said occurrence took place. she has fully supported the

prosecution version about the commission of crime of rape

and the victim has also substantiated the statement so

recorded under Section 164 of Cr.P.C.

48. So far the issue of delay in lodging of FIR is concerned,

it is evident that the informant has lodged written report on

dated 16.07.2022 in which he has mentioned the date of

occurrence 15.07.2022 and time of occurrence 11 P.M.

Further, the informant who has been examined as P.W.5 has

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testified that occurrence took place on 15.07.2022 and at

that time he along with his wife went to place known as

Prachanda at about 12 o'clock (night) and his nephew Vikash

Kumar informed about the occurrence.

49. PW2, who is the victim of this case, has deposed in para

1 that occurrence took place on dated 15.07.22 at 11 P.M. At

that time, he along with his younger brother and sister was at

home. PW1 is the mother of victim and wife of informant. At

para 1 she has deposed that at that time she along with her

husband went to Prachanda and at about 12 o'clock (night)

where her husband was informed about the occurrence. PW3

at para 1 has deposed that occurrence took place on

15.07.2022. PW4 has deposed at para 1 that occurrence took

place on 15.07.2022 at about 11:30. PW6 who is the I.O of

this case has also deposed that on dated 16.07.2022 and at

that time he was posted in Patratu P.S as A.S.I and on the

basis of written report of informant this case was registered.

Thus, from the aforesaid it is evident that the Prosecution

has established the date and time of occurrence.

50. Further, it would be evident from the finding recorded

by the learned trial court as under paragraph 12 of the

impugned order wherein the age of the victim has been

determined, by taking into consideration the date of birth

certificate and considered the age of the victim girl to be less

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than the age of 18 years. The learned trial court after taking

into consideration the definition of child within the meaning

of Section 2 (d) of the POCSO Act has come to the conclusive

finding that the victim girl was child at the time of

occurrence.

51. This Court, after having discussed the aforesaid fact and

coming to the testimony of the prosecution

witnesses including the victim, has found that the victim girl

has categorically substantiated the prosecution version and

even for the sake of argument if it is assumed that she on

her own wish or willingness has accompanied the

accused/applicant, then the question arises that when the

girl is child and minor, then such willingness is having no

bearing as per the object and preamble of the POCSO Act.

Reference in this regard be made to the judgment rendered in

the case of Satish Kumar Jayanti Lal Dabgar v. State of

Gujarat, (2015) 7 SCC 359.

52. This Court, on the basis of the discussion made

hereinabove and considering the testimony of the victim girl

about the commission of crime as also the testimony of

informant, is of the view that it is not a fit case where the

sentence is to be suspended.

53. Therefore, this Court is of the view, the sentence is not

fit to be suspended, during pendency of the appeal.

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54. Accordingly, the instant Interlocutory Application being

I.A. No. 682 of 2025 is hereby rejected.

55. It is made clear that any observation made hereinabove

will not prejudice the case of the parties on merit since the

appeal is lying pending for its consideration.

(Sujit Narayan Prasad, J.)

(Sanjay Prasad, J.) Alankar/

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