High Court

2. Vide order dated 12.07.2024, the appeal was admitted, notice was issued to first informant opposite party-2 and the lower Court record was summoned.

3. Office has submitted another report dated 03.09.2024 stating therein that notice issued to first informant opposite party-2 has been served. However, inspite of service of notice no one has appeared on behalf of first informant opposite party-2 to oppose this appeal even in recall call.

4. Office has submitted a report dated 03.10.2024 stating therein that trial Court record has been received.

5. List this appeal for hearing in due course. Ref: Order on the Application for Suspension of Sentence

1. Heard Mr. Ashwini Kumar Ojha, the learned counsel for applicant/appellant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. By means of the impugned judgment and order applicant- appellant has been convicted and sentenced for a period of 20 years.

4. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A.

5. Inspite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 in opposition to this application for suspension of sentence nor any one has put in appearance on his behalf to oppose this application for suspension of sentence, even in revised call.

6. Learned A.G.A. for State-opposite party-1 has filed his objections/counter affidavit to the application for suspension of sentence. Learned counsel for applicant-appellant submits that he does not wish to file any rejoinder affidavit to the objections/counter affidavit filed by the learned A.G.A.

7. In view of above, the Court has proceeded to hear the counsel for the parties on the application for suspension of sentence.

8. Feeling aggrieved by the judgement and order dated 15.05.2024 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Jalaun at Orai in Special Case No. 54 of 2021 (State Vs. Harishchandra) arising out of Case Crime No. 68 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, P.S.-Dakore, District- Jalaun, applicant/appellant has approached this Court by filing aforementioned criminal appeal.

9. By means of the impugned judgement and order applicant/appellant has been convicted under Section 363 I.P.C. and consequently sentenced to 7 years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant/appellant is to undergo six months additional simple imprisonment, under Section 366 I.P.C. and therefore sentenced to 10 years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant/appellant is to undergo six months additional simple imprisonment, under Section 376 I.P.C. and thus sentenced to 20 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default in payment of fine, applicant/appellant is to undergo one year additional simple imprisonment. The impugned judgment and order further records that all the sentences awarded to applicant/appellant shall run concurrently.

10. Learned counsel for applicant/appellant submits that applicant/appellant was on bail during pendency of trial. However, pursuant to aforementioned judgement dated 15.05.2024, applicant/appellant was taken into custody. As such, applicant/appellant is under incarceration. Accordingly, applicant/appellant has filed aforementioned application for suspension of sentence/his enlargement on bail during the pendency of present criminal appeal.

11. According to the learned counsel for applicant/appellant, though applicant/appellant is a convicted accused and under incarceration yet he is liable to be enlarged on bail during the pendency of present criminal appeal. Applicant/appellant was on bail during the pendency of trial but there is nothing on record to show that applicant/appellant misused the liberty of bail during the pendency of trial.

12. It is next contended by the learned counsel for applicant/appellant that by means of impugned judgment and order applicant/appellant has been convicted and sentenced for a maximum period of 20 years. However, in view of heavy pendency of criminal appeals and also an acute shortage of Hon'ble Judges before this Court there is no likelihood of the present appeal being heard in near future. As such, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. contends

13. Referring to the impugned judgment and order, the learned applicant/appellant counsel applicant/appellant was tried for an offence under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act. Since one of the charges framed against applicant/appellant was under Section 3/4 POCSO Act, therefore, by necessary implication the Court below was required to determine the age of the prosecutrix on the date of incident. Only if the prosecutrix was found to be below 18 years of age on the date of occurrence only then conviction of applicant/appellant under Section 3/4 POCSO Act can be said to be sustainable. With reference to above, the learned counsel for applicant/appellant submits that the age of the prosecutrix has determined by Court below with reference to the S.R. Register of the Institution from where she passed the High School Examination and her date of birth as recorded in the said document is 07.05.2005

14. In the submission of the learned counsel for applicant/appellant, the finding so returned by court below in support of the first point of determination is not only illegal, perverse but also erroneous. Referring to the judgement of Supreme Court in Jarnail Singh Vs. State of Haryana, (2013) 7SCC 263, the learned counsel for applicant/appellant submits that it has now been held by the Apex Court that the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act of 2015). He has then referred to Section 94 of the Act of 2015, which reads as under: "Section 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 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."

15. With reference to aforesaid provisions as occurring on the statute book, the learned counsel for applicant/appellant contends that perusal of the Section 94 of the Act, 2015 will go to show that scholar register of institution is not one of the documents recognized under Section 94 of the Act of 2015 for determining the age of the prosecutrix. It is then submitted by the learned counsel for applicant/appellant that provision contained in Section 94 i.e. Section 94(2)(i), 94(2)(ii) and 94(2)(iii) operate in a preferential manner. Meaning thereby, the Court has to first determine the age of the prosecutrix with reference to documents mentioned in 94(2)(i). In case any of the document recognized and mentioned in 94(2)(i) is unavailable then the Court will decide the age of the prosecutrix/victim/child with reference to the documents mentioned in Section 94(2)(ii) of the Act of 2015. In case no document referable to aforesaid section is available then as a last resort Court can get the age of the prosecutrix medically determined as per the mandate of Section 94(2)(iii) of Act, 2015. To buttress his submission, he has relied upon the judgement of Apex Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846, wherein Apex Court has observed that as per the scheme of Section 94 of Act of 2015, only three categories of documents are recognized therein for determining the age of the victim. The age of the prosecutrix/victim has not been determined with reference to the documents referred to in Section 94 of Act of 2015 and not otherwise. At this juncture, it would be appropriate to reproduce the relevant observations made by Court itself in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report.

16. Accordingly, paragraphs 11, 12, 13, 14 and 19 of the aforesaid report are reproduced herein under :- "11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows: ?34. Procedure in case of commission of offence by child and determination of age by Special Court. ? (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 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. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.?

12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

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 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.?

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (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 medical age determination test conducted on the orders of the Committee or the Board?.

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 which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) 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.

19. It is clear from the above narrative that none of the documents produced during the trial answered the description of ?the date of birth certificate from the school? or ?the matriculation or equivalent certificate? from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim?s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating ?that the age of the said girl would be more than 18 years and less than 20 years?. In the cross-examination, she admitted that M?s age could be taken as 19 years. However, the High Court rejected this evidence, saying that ? when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor?. This finding is, in this court?s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim?s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."

17. Since the scholar register of institution is not one of such document which is recognized within the parameters of Section 94 of Act, 2015, therefore, Court below has erred in law in concluding the age of the prosecutrix as per her date of birth mentioned in the scholar register. On the above conspectus, the learned counsel for applicant/appellant thus submits that findings returned by Court below qua the age of the prosecutrix is patently erroneous, consequently, the appeal is liable to be allowed to that extent. In view of above, the direction contained in the judgement of Supreme Court in Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123, wherein, Apex Court has observed that an accused can be enlarged on bail during the pendency of criminal appeal only when Court records a findings that prima facie the appeal is liable to be allowed. On the above premise, the learned counsel for applicant/appellant thus submits that since finding returned by Court below qua the age of the prosecutrix is unsustainable in law, therefore, the conviction and sentence awarded to the applicant/appellant by Court below under Section 3/4 POCSO Act can not be sustained. He, therefore, contends that in view of above ex-facie the appeal is liable to be allowed.

18. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant/appellant is in jail since 15.05.2024. As such, he has undergone more than 11 months of incarceration. Apart from above, according to the learned counsel for applicant/appellant the conclusion drawn by Court below is not only illegal but also perverse. It is thus urged by applicant/appellant is liable to be enlarged on bail during the pendency of present criminal appeal. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. applicant/appellant learned counsel

19. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant/appellant is a convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. Offence complained of against applicant/appellant is not only illegal but also immoral. Applicant/appellant is guilty of dislodging the modesty of the prosecutrix, who was an innocent and young girl and was aged about 15 years 2 months and 28 days on the date against applicant/appellant is not private in nature but a crime against society. As such, no interference is required by this Court at this stage. Offence complained of occurrence.

20. Learned A.G.A. has then invited the attention of Court to the impugned judgment and order and with reference to the same submits that prosecutrix deposed before Court below as PW-1. Prosecutrix in her deposition before Court below has fully supported the FIR. Considering the anomaly with regard to the documentary evidence regarding the age of prosecutrix, Court applicant/appellant under Section 376 I.P.C. and not under Section 3/4 POCSO Act. In view of above, the issue as to whether findings returned by Court below qua the age of the prosecutrix are legally justifiable or not becomes wholly irrelevant for deciding the issues raised by the learned counsel below has convicted and sentenced for applicant/appellant. The present case is a case of direct evidence. It is well established principle of law that in a case of direct evidence the accused can get benefit only when he is able to establish that prosecution witness of fact is neither reliable nor credible. Therefore, his testimony is not worthy of acceptance. Inspite of the fact that prosecutrix was to put to lengthy cross-examination on behalf of applicant/appellant but nothing adverse could be culled out from her in her examination-in-chief so as to dislodge her. On the above premise, the learned A.G.A. submits that none of the submissions urged by applicant/appellant in support of this application for suspension of sentence are cogent enough so as to even record a finding that the appeal is even prima facie liable to be allowed. In view of above, the direction contained in the judgement of Supreme Court in Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123, that a convicted accused can be enlarged by the Court of appeal only after a finding is recorded that prima facie the appeal is liable to allowed does not stand attracted in the present case. As such the application for suspension of sentence/grant of bail is liable to be rejected by this Court. learned counsel

21. When confronted with above, the learned counsel for applicant/appellant could not overcome the same.

22. Having heard, the learned counsel for applicant/appellant, the learned A.G.A. for State-opposite party-1, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made, this court finds that the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant/appellant. As such, no good ground exists to allow the application for suspension of sentence.

23. In view of above, the application for suspension for sentence/grant of bail to accused applicant/appellant fails and liable to be rejected.

24. It is accordingly rejected. Order Date :- 11.4.2025 Imtiyaz

2. Vide order dated 12.07.2024, the appeal was admitted, notice was issued to first informant opposite party-2 and the lower Court record was summoned.

3. Office has submitted another report dated 03.09.2024 stating therein that notice issued to first informant opposite party-2 has been served. However, inspite of service of notice no one has appeared on behalf of first informant opposite party-2 to oppose this appeal even in recall call.

4. Office has submitted a report dated 03.10.2024 stating therein that trial Court record has been received.

5. List this appeal for hearing in due course. Ref: Order on the Application for Suspension of Sentence

1. Heard Mr. Ashwini Kumar Ojha, the learned counsel for applicant/appellant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. By means of the impugned judgment and order applicant- appellant has been convicted and sentenced for a period of 20 years.

4. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A.

5. Inspite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 in opposition to this application for suspension of sentence nor any one has put in appearance on his behalf to oppose this application for suspension of sentence, even in revised call.

6. Learned A.G.A. for State-opposite party-1 has filed his objections/counter affidavit to the application for suspension of sentence. Learned counsel for applicant-appellant submits that he does not wish to file any rejoinder affidavit to the objections/counter affidavit filed by the learned A.G.A.

7. In view of above, the Court has proceeded to hear the counsel for the parties on the application for suspension of sentence.

8. Feeling aggrieved by the judgement and order dated 15.05.2024 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Jalaun at Orai in Special Case No. 54 of 2021 (State Vs. Harishchandra) arising out of Case Crime No. 68 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, P.S.-Dakore, District- Jalaun, applicant/appellant has approached this Court by filing aforementioned criminal appeal.

9. By means of the impugned judgement and order applicant/appellant has been convicted under Section 363 I.P.C. and consequently sentenced to 7 years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant/appellant is to undergo six months additional simple imprisonment, under Section 366 I.P.C. and therefore sentenced to 10 years rigorous imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant/appellant is to undergo six months additional simple imprisonment, under Section 376 I.P.C. and thus sentenced to 20 years rigorous imprisonment along with fine of Rs. 20,000/- and in case of default in payment of fine, applicant/appellant is to undergo one year additional simple imprisonment. The impugned judgment and order further records that all the sentences awarded to applicant/appellant shall run concurrently.

10. Learned counsel for applicant/appellant submits that applicant/appellant was on bail during pendency of trial. However, pursuant to aforementioned judgement dated 15.05.2024, applicant/appellant was taken into custody. As such, applicant/appellant is under incarceration. Accordingly, applicant/appellant has filed aforementioned application for suspension of sentence/his enlargement on bail during the pendency of present criminal appeal.

11. According to the learned counsel for applicant/appellant, though applicant/appellant is a convicted accused and under incarceration yet he is liable to be enlarged on bail during the pendency of present criminal appeal. Applicant/appellant was on bail during the pendency of trial but there is nothing on record to show that applicant/appellant misused the liberty of bail during the pendency of trial.

12. It is next contended by the learned counsel for applicant/appellant that by means of impugned judgment and order applicant/appellant has been convicted and sentenced for a maximum period of 20 years. However, in view of heavy pendency of criminal appeals and also an acute shortage of Hon'ble Judges before this Court there is no likelihood of the present appeal being heard in near future. As such, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. contends

13. Referring to the impugned judgment and order, the learned applicant/appellant counsel applicant/appellant was tried for an offence under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act. Since one of the charges framed against applicant/appellant was under Section 3/4 POCSO Act, therefore, by necessary implication the Court below was required to determine the age of the prosecutrix on the date of incident. Only if the prosecutrix was found to be below 18 years of age on the date of occurrence only then conviction of applicant/appellant under Section 3/4 POCSO Act can be said to be sustainable. With reference to above, the learned counsel for applicant/appellant submits that the age of the prosecutrix has determined by Court below with reference to the S.R. Register of the Institution from where she passed the High School Examination and her date of birth as recorded in the said document is 07.05.2005

14. In the submission of the learned counsel for applicant/appellant, the finding so returned by court below in support of the first point of determination is not only illegal, perverse but also erroneous. Referring to the judgement of Supreme Court in Jarnail Singh Vs. State of Haryana, (2013) 7SCC 263, the learned counsel for applicant/appellant submits that it has now been held by the Apex Court that the age of the prosecutrix/victim/child under the POCSO Act has to be determined in accordance with the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act of 2015). He has then referred to Section 94 of the Act of 2015, which reads as under: "Section 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 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."

15. With reference to aforesaid provisions as occurring on the statute book, the learned counsel for applicant/appellant contends that perusal of the Section 94 of the Act, 2015 will go to show that scholar register of institution is not one of the documents recognized under Section 94 of the Act of 2015 for determining the age of the prosecutrix. It is then submitted by the learned counsel for applicant/appellant that provision contained in Section 94 i.e. Section 94(2)(i), 94(2)(ii) and 94(2)(iii) operate in a preferential manner. Meaning thereby, the Court has to first determine the age of the prosecutrix with reference to documents mentioned in 94(2)(i). In case any of the document recognized and mentioned in 94(2)(i) is unavailable then the Court will decide the age of the prosecutrix/victim/child with reference to the documents mentioned in Section 94(2)(ii) of the Act of 2015. In case no document referable to aforesaid section is available then as a last resort Court can get the age of the prosecutrix medically determined as per the mandate of Section 94(2)(iii) of Act, 2015. To buttress his submission, he has relied upon the judgement of Apex Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846, wherein Apex Court has observed that as per the scheme of Section 94 of Act of 2015, only three categories of documents are recognized therein for determining the age of the victim. The age of the prosecutrix/victim has not been determined with reference to the documents referred to in Section 94 of Act of 2015 and not otherwise. At this juncture, it would be appropriate to reproduce the relevant observations made by Court itself in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report.

16. Accordingly, paragraphs 11, 12, 13, 14 and 19 of the aforesaid report are reproduced herein under :- "11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows: ?34. Procedure in case of commission of offence by child and determination of age by Special Court. ? (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 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. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.?

12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

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 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.?

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (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 medical age determination test conducted on the orders of the Committee or the Board?.

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 which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) 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.

19. It is clear from the above narrative that none of the documents produced during the trial answered the description of ?the date of birth certificate from the school? or ?the matriculation or equivalent certificate? from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim?s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating ?that the age of the said girl would be more than 18 years and less than 20 years?. In the cross-examination, she admitted that M?s age could be taken as 19 years. However, the High Court rejected this evidence, saying that ? when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor?. This finding is, in this court?s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim?s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."

17. Since the scholar register of institution is not one of such document which is recognized within the parameters of Section 94 of Act, 2015, therefore, Court below has erred in law in concluding the age of the prosecutrix as per her date of birth mentioned in the scholar register. On the above conspectus, the learned counsel for applicant/appellant thus submits that findings returned by Court below qua the age of the prosecutrix is patently erroneous, consequently, the appeal is liable to be allowed to that extent. In view of above, the direction contained in the judgement of Supreme Court in Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123, wherein, Apex Court has observed that an accused can be enlarged on bail during the pendency of criminal appeal only when Court records a findings that prima facie the appeal is liable to be allowed. On the above premise, the learned counsel for applicant/appellant thus submits that since finding returned by Court below qua the age of the prosecutrix is unsustainable in law, therefore, the conviction and sentence awarded to the applicant/appellant by Court below under Section 3/4 POCSO Act can not be sustained. He, therefore, contends that in view of above ex-facie the appeal is liable to be allowed.

18. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant/appellant is in jail since 15.05.2024. As such, he has undergone more than 11 months of incarceration. Apart from above, according to the learned counsel for applicant/appellant the conclusion drawn by Court below is not only illegal but also perverse. It is thus urged by applicant/appellant is liable to be enlarged on bail during the pendency of present criminal appeal. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. applicant/appellant learned counsel

19. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant/appellant is a convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. Offence complained of against applicant/appellant is not only illegal but also immoral. Applicant/appellant is guilty of dislodging the modesty of the prosecutrix, who was an innocent and young girl and was aged about 15 years 2 months and 28 days on the date against applicant/appellant is not private in nature but a crime against society. As such, no interference is required by this Court at this stage. Offence complained of occurrence.

20. Learned A.G.A. has then invited the attention of Court to the impugned judgment and order and with reference to the same submits that prosecutrix deposed before Court below as PW-1. Prosecutrix in her deposition before Court below has fully supported the FIR. Considering the anomaly with regard to the documentary evidence regarding the age of prosecutrix, Court applicant/appellant under Section 376 I.P.C. and not under Section 3/4 POCSO Act. In view of above, the issue as to whether findings returned by Court below qua the age of the prosecutrix are legally justifiable or not becomes wholly irrelevant for deciding the issues raised by the learned counsel below has convicted and sentenced for applicant/appellant. The present case is a case of direct evidence. It is well established principle of law that in a case of direct evidence the accused can get benefit only when he is able to establish that prosecution witness of fact is neither reliable nor credible. Therefore, his testimony is not worthy of acceptance. Inspite of the fact that prosecutrix was to put to lengthy cross-examination on behalf of applicant/appellant but nothing adverse could be culled out from her in her examination-in-chief so as to dislodge her. On the above premise, the learned A.G.A. submits that none of the submissions urged by applicant/appellant in support of this application for suspension of sentence are cogent enough so as to even record a finding that the appeal is even prima facie liable to be allowed. In view of above, the direction contained in the judgement of Supreme Court in Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123, that a convicted accused can be enlarged by the Court of appeal only after a finding is recorded that prima facie the appeal is liable to allowed does not stand attracted in the present case. As such the application for suspension of sentence/grant of bail is liable to be rejected by this Court. learned counsel

21. When confronted with above, the learned counsel for applicant/appellant could not overcome the same.

22. Having heard, the learned counsel for applicant/appellant, the learned A.G.A. for State-opposite party-1, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made, this court finds that the objections raised by the learned A.G.A. in opposition to this application for suspension of sentence are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant/appellant. As such, no good ground exists to allow the application for suspension of sentence.

23. In view of above, the application for suspension for sentence/grant of bail to accused applicant/appellant fails and liable to be rejected.

24. It is accordingly rejected. Order Date :- 11.4.2025 Imtiyaz