Vicky Sharma vs State Of U.P. And 3 Others on 24 July, 2026

July 29, 2026

Allahabad High Court

Vicky Sharma vs State Of U.P. And 3 Others on 24 July, 2026

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2026:AHC:153754
 
Reserved On : 01.05.2026
 
Delivered On : 24.07.2026
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No. - 5986 of 2025
 
Vicky Sharma 							....Appellant(s)
 
Versus
 
State Of Up And 3 Others					.....Respondent(s)
 

 
Counsel for Appellant(s)			:	Pradeep Kumar Rai, 
 
							Prakhar Saran Srivastava
 
Counsel for Respondent(s)		:	G.A.
 
Court No. - 46
 

 
HON'BLE RAJEEV MISRA, J.

(Ref:- Order on the memo of appeal)-

1. Heard Mr. Prakhar Saran Srivastava, the learned counsel for appellant and the learned A.G.A. for State-opposite party-1.

SPONSORED

2. Notice in respect of opposite party-3 High Court Legal Services Committee, High Court, Allahabad was served in the office of opposite party-3 before filing the present appeal. However, in spite of service of notice, no one has put in appearance on behalf of opposite party-3 to oppose this appeal, even in revised call.

3. Present appeal came up for admission on 15.07.2025 and this Court passed the following order;-

Ref: Order on Memo of Appeal.

Heard Mr. Prakhar Saran Srivastava, the learned counsel for appellant and the learned A.G.A. for State.

Admit.

Summon the lower court record.

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

Issue notice to opposite parties- 2 and 4.

Notice issued to opposite parties- 2 and 4 shall be made returnable on 27.08.2025. Notice shall further indicate that matter shall re-appear for orders before Court as fresh on 27.08.2025.

Notice in respect of opposite party-3 was served in the Office of opposite party-3 before filing this appeal. However, in spite of service of notice no one has put in appearance on behalf of opposite party-3 to oppose this appeal even in revised call.

Put up this appeal for orders as fresh on 27.08.2025.

Ref: Order on Application for suspension of sentence

Heard Mr. Saurabh Singh, the learned counsel for applicant/appellant and the learned A.G.A. for State.

Perused the record.

By means of the impugned judgment and order, applicant/appellant has been convicted under Sections 363, 366, 376 IPC and Section 4 POCSO Act, also and sentenced to maximum sentence of 10 years.

Since the applicant/appellant has been convicted under the POCSO Act also, therefore, no order can be passed by this Court on the application for suspension of sentence filed by applicant/appellant without hearing the first informant-opposite party-2.

Apart from above, since the sentence awarded to applicant/appellant is 10 years, therefore, by reason of the provisions contained in Section 430 BNSS, the learned A.G.A. is mandatorily required to file his objections/counter/affidavit to the application for suspension of sentence before any order can be passed by this Court on the application for suspension of sentence.

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

Issue notice to opposite parties- 2 and 4.

Notice issued to opposite parties- 2 and 4 shall be made returnable on 27.08.2025.

Notice shall further indicate that matter shall re-appear before this Court as fresh on 27.08.2025.

All the opposite parties may file their respective objections/counter affidavits to the application for suspension of sentence within four weeks.

Learned AGA shall also bring on record the custody certificate of applicant/appellant along with counter affidavit to be filed by him.

Applicant/appellant will have two weeks thereafter to file his rejoinder affidavits.

Put up this appeal again for orders as fresh on 27.08.2025.

By the next date, the learned counsel for applicant-appellant shall file a list of dates, brief synopsis containing the details of prosecution evidence (oral and documentary), material exhibits, defence evidence, points raised before Court below and the findings returned by Court below.

4. Pursuant to above order dated 15.07.2025, notices were issued to first informant/respondent-2 and respondent-4 Child Welfare Committee, Ghazipur. Office has submitted a report dated 16.09.2025 stating therein that Trial Court record has been received. Another report dated 17.09.2025 has been submitted by the office stating therein that notices issued to first informant-respondent-2 has been served personally, whereas notice issued to opposite party-4 has been served in the office of opposite party-4. However, in spite of service of notice, no one has put in appearance on their behalf to oppose this appeal, even in revised call.

5. List this appeal for hearing in due course.

(Ref; Order on the Application for Suspension of Sentence)-

1. Heard Mr. Prakhar Saran Srivastava, the learned counsel for applicant/appellant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Feeling aggrieved by the judgment and order dated 31.05.2025 passed by Additional Sessions Judge/Special Judge (POCSO Act), Court No.-1, Ghazipur in Special Sessions Trial No. 52 of 2017 (State Vs. Vicky Sharma) arising out of Case Crime No. 363, 366, 376, 406, 411 IPC and Section 4 of the POCSO Act, Police Station-Dildarnagar, District-Ghazipur, the accused i.e. applicant/appellant has approached this Court by means of above-mentioned Criminal Appeal under Section 415(2) Bhartiya Nagrik Suraksha Sanhita i.e. BNSS.

4. Under the impugned judgment and order passed by court below, applicant/appellant has been convicted and sentenced under Section 4 of the POCSO Act and therefore, sentenced to 20 years simple imprisonment along with fine of Rs. 25,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional simple imprisonment, under Section 363 IPC and therefore sentenced to 5 years simple imprisonment along with fine of Rs. 5,000/- and in case of default in payment of fine, applicant/appellant is to undergo one week of additional simple imprisonment, under Section 366 IPC and therefore, sentenced to 7 years simple imprisonment along with fine of Rs. 10,000/- and in case of default in payment of fine, applicant/appellant is to undergo 15 days additional simple imprisonment. The impugned judgment and order further records that all the sentences shall run concurrently.

5. Learned counsel for applicant-appellant submits that applicant-appellant was enlarged on bail during the pendency of trial. However, subsequent to the impugned judgment dated 31.05.2025 passed by Court below, applicant-appellant was taken into custody. Accordingly, applicant/appellant is under incarceration since then. In view of above, applicant-appellant has filed above-mentioned application for suspension of sentence/prayer for bail seeking his enlargement on bail during the pendency of present appeal.

6. According to the learned counsel for applicant/appellant, though applicant-appellant has been convicted and sentenced under Section 4 of the POCSO Act, however, the same is unsustainable in law and fact. In the submission of learned counsel for applicant/appellant, any Court before awarding conviction and sentence to an accused under the POCSO Act, has to first decide the age of the prosecutrix and then return a clear finding that the prosecutrix is a child within the meaning of the term child as defined in Section 2(d) of the POCSO Act, as he/she was below 18 years of age on the date of occurrence. Only after a finding regarding the aforesaid fact has been recorded, can an accused be convicted under the POCSO Act.

7. Referring to the judgment of Supreme Court in Jarnail Singh Vs. State of Haaryana, (2013) 7 SCC 263, the learned counsel for applicant/appellant contends that by virtue of the law laid down by Apex Court in aforementioned judgment, the age of the prosecutrix/victim/child under the POCSO Act can be determined only in accordance with the provisions contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Since, the Juvenile Justice (Care and Protection of Children) Act, 2000 has now been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015), therefore, by necessary implication, the age of the prosecutrix/victim/child under the POCSO Act can be determined only with reference to the provisions contained in Section 94 of the Act of 2015. The above view taken by the Apex Court in aforementioned judgment has been reaffirmed in the following judgments of Supreme Court in (1) Mahadeo Vs. State of Maharashtra and Another, (2013) 14 SCC 637 and (2) State of Madhya Pradesh Vs. Anoop Singh (2015) 7 SCC 773.

8. Elaborating his aforesaid submission, the learned counsel for applicant/appellant contends that in view of aforesaid categorical pronouncement of Supreme Court, the juvenility of a child/prosecutrix can be determined only 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) and the Rules framed thereunder. For ready reference, the same is reproduced herein 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;

(jii) 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.

9. With reference to above, the learned counsel for applicant-appellant submits that the provisions contained in Section 94 of the Act of 2015, operate in a preferential manner. Meaning thereby that the Court shall proceed to determine the age of child/prosecutrix/victim, first with reference to the date of birth of prosecutrix/child/victim in any of the documents mentioned in Sub-Section-(i) of Section 94(2). In the absence of any document recognized under Section 94(2)(i) of the Act of 2015reliance shall be placed upon the documents enumerated in Section 94(2)(ii) of Act of 2015. Only when no document detailed in Sections 94(2)(i) and 94(2)(ii) is available that Court can resort to the provisions contained in Section 94(2)(iii) i.e. to get the medical determination of age of the prosecutrix/victim/child.

10. At this stage, the learned counsel for applicant/appellant invited the attention of Court to the judgment of Supreme Court in P. Yuvaprakash Vs. State Rep. by Inspector of Police, 2023 SCC Online SC 846, wherein Apex Court has explained the parameters of Section 94 of Act 2015. At this juncture, it would be appropriate to reproduce the relevant observations made by the Court itself in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report. 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.

(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 victims 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 Ms 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 courts 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 victims 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.”

11. In the light of statutory provisions referred to above as well as the observations made by Apex Court in the case of P. Yuvaprakash (supra), the learned counsel for applicant/appellant submits that the finding returned by Court below regarding age of the prosecutrix/child/victim on the date of occurrence is not only illegal, perverse but also erroneous. In support of above, attention of Court was invited to internal page-7 of the impugned judgment. With reference to above, it was contended by the learned counsel for applicant/appellant that age of the prosecutrix/child/victim has been determined with reference to the date of birth of the prosecutrix as recorded in the Scholar Register which is 15.07.2003. However, in view of the provisions contained in Section 94 of the Act, 2015 as well as the law laid down by Apex Court in the case of P. Yuvaprakash (supra), age of prosecutrix could not have been determined with reference to her date of birth recorded in the scholar register, inasmuch as, the scholar register is not a document recognized in Section 94(2)(i) or 94(2)(ii) of the Act of 2015 for determining the age of the child/prosecutrix with reference to his/her date of birth recorded therein. As such, the finding so returned by Court below regarding age of the prosecutrix on the date of occurrence i.e. she was a child within the meaning of Section 2(d) of the POCSO Act is unsustainable in law and fact. Further reference was made to the following judgments of this court and other High Courts i.e. (1) order dated 25.09.2025 passed in Criminal Appeal No. 6149 of 2025 (Chandrabali Panika Alias Virendra Vs. State of U.P. and 3 Others), (2) Abhinandan Sah Vs. State of Bihar, 2023 SCC OnLinie Pat 6312 and (3) Marlinga @ Mariyappa Vs. State of Karnataka by Circle Inspector of Police, 2022 SCC OnLine Kar 1644 in support of the submission that the determination made by court below regarding the age of prosecutrix on the date of occurrence is illegal. On the above premise, the learned counsel for applicant/appellant thus urged that once the finding returned by Court below regarding age of the prosecutrix cannot be sustained, the consequential conviction and sentence awarded to applicant/appellant by Court below for an offence under Section 4 of the POCSO Act on the basis of aforesaid finding is liable to be set aside by this Court.

12. It was however, additionally contended by the learned counsel for applicant/appellant that as per medical determination of age, the prosecutrix was said to be more than 18 years of age. Moreover, as per the deposition of the prosecutrix herself, she is a willing and consenting party. The prosecutrix herself joined the accused i.e. applicant/appellant and accompanied him to various places. As such, there was consensual relationship between the parties. In view of above, it cannot be said that the applicant/appellant is guilty of dislodging the modesty of prosecutrix deliberately and forcibly. In view of above, neither an offence under Section 376 IPC nor an offence under Section of the POCSO Act can be said to be made out against applicant/appellant.

13. Mr. Prakhar Saran Srivastava, the learned counsel for applicant/appellant also urged that applicant/appellant is a man of clean antecedents having no criminal history to his credit accept the present one. Applicant/appellant is in jail since 31.05.2025. As per the custody certificate, copy of which is on record as Annexure-CA-2 to the counter affidavit filed by the learned A.G.A. on behalf of State-opposite party-1, applicant/appellant has undergone 7 months and one day of incarceration up to 12.08.2025. On account of heavy pendency of criminal appeals before this Court, there is no likelihood of the present appeal being heard in near future. No such fact has come on record warranting custodial arrest of applicant/appellant during the pendency of present appeal. The sentence awarded to applicant/appellant by Court below is a definite sentence punishment inasmuch as, applicant/appellant has been sentenced for a definite period of 20 years. As such, in view of above, applicant/appellant is liable to be enlarged on bail during the pendency of present appeal. Attention of the Court was also invited to the judgment of Supreme Court in Atul @ Ashutosh Vs. State of Madhya Pradesh, (2024) 3 SCC 663, wherein the Apex Court has itself observed that in case, sentence awarded to a convict by the Trial Court is a definite sentence punishment and there is no possibility of the appeal being heard in near future then in such a circumstance, such a convict should be enlarged on bail during the pendency of appeal. On the above premise, the learned counsel for applicant-appellant thus urged that applicant-appellant is liable to be enlarged on bail during the pendency of present appeal. In case, applicant-appellant is enlarged on bail, then in that eventuality, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

14. According to the learned counsel for applicant/appellant, court below has erred in convicting and sentencing the applicant/appellant under Sections 363 & 366 IPC simultaneously. In the submission of the learned counsel for applicant/appellant, an offence under Section 366 IPC is a higher offence and therefore, no simultaneous conviction and sentence under Sections 363 & 366 IPC should be awarded. Once Court below convicted and sentence the applicant/appellant under Section 366 IPC, there was no necessity to convict and sentence the applicant/appellant under Section 363 IPC also. In view of above, the learned counsel for applicant/appellant thus submitted that the conviction and sentence awarded to applicant/appellant under Section 363 IPC by Court below is manifestly illegal and therefore, liable to be set side by this Court. To buttress his submission, the learned counsel for applicant/appellant relied upon the judgment of Supreme Court in Rajendra Vs. State of Maharashtra, 1997 SCC (Crl) 840, wherein the Apex Court has observed in clear terms that no conviction under Sections 363, 366 IPC be awarded simultaneously.

15. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the prayer for bail. Learned A.G.A. submits that since applicant-appellant is a named as well as convicted accused and undergoing incarceration, 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 rather than enlarging the applicant-appellant on bail during the pendency of present appeal.

16. It was next contended by the learned A.G.A. that offence complained of against applicant/appellant is not only illegal but also immoral. Applicant/appellant is guilty of dislodging the modesty of prosecutrix, who is a young and innocent girl and was below 18 years of age on the date of incident, deliberately, forcibly and repeatedly. Referring to the deposition of prosecutrix, copy of which is on record at page-37 of the supplementary affidavit, the learned A.G.A. submits that from perusal of the deposition of prosecutrix, it is evident that at no point of time, the prosecutrix consented for physical relationship. At this juncture, the learned A.G.A. contended that there is a distinction between acquaintance and consent. Therefore, even if the prosecutrix was acquainted with applicant/appellant or there was a love relationship between applicant/appellant and the prosecutrix, there was no consent on her part to have physical relationship with applicant/appellant. As such, the submission urged by the learned counsel for applicant/appellant that since the prosecutrix is a willing and consenting party as she joined the applicant/appellant herself and thereafter willingly accompanied the applicant/appellant to have physical relationship is a fanciful argument, which is attractive at the first flush but devoid of substance and therefore liable to be rejected by this Court.

17. Learned A.G.A. then took the Court to the impugned judgment and invited the attention of Court to internal page-7 of the impugned judgment. With reference to the same, it was urged by the learned A.G.A. that applicant/appellant is already married. The said fact has emerged in the statement-in-chief of the prosecutrix at page-39 of the supplementary affidavit. No attempt was made by applicant/appellant to explain the said fact either. Since applicant/appellant is a married man and therefore, the conduct of applicant/appellant is false from the very inception.

18. Disputing the submissions urged by the learned counsel for applicant/appellant that since applicant/appellant has been awarded definite sentence punishment by Court below and therefore, applicant/appellant should be enlarged on bail during the pendency of present appeal, the learned A.G.A. would submit that applicant/appellant has been sentenced to 20 years simple imprisonment, which is a synonym for life imprisonment. In view of above, the ratio laid down by Apex Court in the case of Atul @ Ashutosh (Supra) shall not be applicable. To the contrary, the principles laid down by Apex Court in the case of Omprakash Sahni vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123 shall be applicable, wherein the Apex Court has observed that in the case of a life sentence, an accused shall be enlarged on bail only when a finding is returned by Appellate Court concerned that the appeal is prima-facie liable to be allowed. Since as per the submission urged by the learned counsel for applicant/appellant up to this stage, a finding that prima-facie the appeal is liable to be allowed is not liable to be recorded, therefore, no case to enlarge the applicant/appellant on bail during the pendency of present appeal is made out. Reference was also made to the judgment of Supreme Court in Chhotelal Yadav Vs. State of Jharkhand and Another, 2025 SCC OnLine SC 3062, wherein the Apex Court has distinguished the ratio laid down in the case of Atul @ Ashutosh (Supra). The Apex Court has now observed that even if the convict has been awarded definite sentence punishment by Court below, yet the Appellate Court can deny bail to such a convict during the pendency of appeal, if the facts are clinching. Referring to the circumstances of the case, which have already been noted herein above, the learned A.G.A. contended that in view of the nature and gravity of offence and more particularly that the prosecutrix is a young girl, who was below 18 years of age on the date of incident, no indulgence be granted by this Court in favour of applicant/appellant.

19. On the point of age of the prosecutrix/child/victiim on the date of occurrence, the learned A.G.A. urged that it has come in the impugned judgment that the age of the prosecutrix was determined by both ways. According to the learned A.G.A., the same is illegal. Under the scheme of Section 94 of the Act of 2015, the age of a child/prosecutrix can be determined either with reference to the date of birth recorded in any of the documents mentioned in Section 94 of the Act of 2015 or by medical determination of age but not by both ways. Since in the present case, the extract of the scholar register (Ext-Ka-7) was available which also contained an endorsement that the prosecutrix has passed her High School Examination, there was no occasion before Court below to get the medical determination of age of the prosecutrix. Since it has come on record that the prosecutrix/child/victim has passed her High School Examination, which fact is evident from the endowment made in the exhibit of scholar register (Ext-Ka-7) and also the fact that prosecutrix had never consented for physical relationship with the accused applicant/appellant then by virtue of the provisions contained in Section 29 of the POCSO Act, reverse burden was upon the accused himself to demonstrate that the prosecutrix/child is not a child within the meaning of the term child as defined in Section 2(d) of the POCSO Act. Since the said burden has not been discharged by the accused to prove that the recital occurring in the extract of scholar register (Ext-ka-7) that prosecutrix has passed her High School Examination is patently incorrect or that the date of birth of the prosecutrix recorded in her High School Examination is different from the one mentioned in the scholar register. Therefore, no good ground exists on record to enlarge the accused i.e. applicant/appellant on bail during the pendency of present appeal. Learned A.G.A. thus urged that the application for suspension of sentence is liable to be rejected.

20. Having heard, the learned counsel for applicant-appellant, the learned A.G.A. for State-opposite party-1, upon perusal of record, evidence, nature and gravity of offence, complicity of accused/applicant/appellant, accusations made, this Court finds that applicant/appellant has been convicted under Section 4 of the POCSO Act and therefore, sentenced to 20 years simple imprisonment. The aforesaid conviction and sentence has been awarded to applicant/appellant in view of the finding recorded by Court below regarding the age of prosecutrix on the date of occurrence. The prosecutrix was held to be below 18 years of age on the date of occurrence and therefore, a child within the meaning of the term child as defined in Section 2(d) of the POCSO Act. The age of the prosecutrix was determined with reference to her date of birth recorded in the scholar register, wherein the date of birth of the prosecutrix/child has been recorded as 15.07.2003. The said document was proved by PW-7 and marked as Ext-Ka-7. Though under the provision of Section 94 of the Act of 2015 as well as the judgment of Supreme Court in P. Yuvaprakash (Supra), the age of the prosecutrix/child could not be determined with reference to the date of birth recorded in scholar register. However, there is one distinguishing feature in this case. The said document i.e. Ext-Ka-7 contains a recital that the prosecutrix has passed her Class-10th examination i.e. High School. No rebuttal evidence was filed by the accused/applicant/appellant that the prosecutrix has not passed High School Examination or that the date of birth of the prosecutrix mentioned in the scholar register is different from the date of birth of the prosecutrix recorded in her High School Certificate. In view of the categorical statement of the prosecutrix, who deposed before Court below as PW-3 that at the time of occurrence, she was studying in Class-Xth and her modesty was dislodged deliberately and forcibly and also the fact that the prosecutrix has passed the High School Examination then in such a circumstance by reason of Section 29 of the POCSO Act, the reverse burden was upon the accused/applicant/appellant to prove that firstly the prosecutrix is not a child within the meaning of the term child as defined in Section 2(d) of the POCSO Act and the parties were in consensual physical relationship. It is thus evident that the accused was also required to dislodge the presumption arising out of Section 114-A of the Evidence Act. Applicant/appellant neither himself deposed before Court below as a witness nor any witness was adduced by him to disprove the said fact. Even in his statement under Section 313 Cr.P.C. in reply to Question Nos. 12 and 14, nothing has been stated by him. In view of above, no finding can be returned by this Court at this stage that prima-facie the appeal is liable to be allowed. In view of above and also the fact and circumstances of the case as noted herein above, this Court does not find any good or sufficient ground to enlarge the applicant/appellant on bail during the pendency of present appeal.

21. In view of aforesaid discussion, this application for suspension of sentence fails and is liable to be rejected.

22. It is, accordingly, rejected.

July 24, 2026

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Vicky Sharma vs State Of U.P. And 3 Others on 24 July, 2026

Allahabad High Court