Juned Sheikh vs The State Of Madhya Pradesh
2021 Latest Caselaw 2896 MP

                                 1                               MCRC-17683-2021
        The High Court Of Madhya Pradesh
                  MCRC-17683-2021
                 (JUNED SHEIKH Vs THE STATE OF MADHYA PRADESH)

2
Indore, Dated : 01-07-2021
      Heard through Video Conferencing.
      Shri Sanjay Kumar Sharma, learned counsel for the applicant.
      Ms. Sharmila Sharma, learned Panel Lawyer for State.
      Shri Jayesh Yadav, learned counsel for objector.
      Submissions were made on 2nd bail application filed under Section 439

of Cr.P.C. The applicant is being implicated in crime No.17/2020, registered
at police station Industrial Area, Ratlam, for the offence punishable under
Sections 363, 366-A, 376(2)(n), 506 of IPC and under Section 5/6 of
POCSO Act.
      As per prosecution story, the applicant had kidnapped and committed
rape on minor prosecutrix.
      The first bail application was dismissed as withdrawn vide order dt.
14.7.2020 with liberty to renew the prayer after recording the court statement
of the prosecutrix

      Learned counsel for the applicant has drawn Court's attention to the
deposition of the prosecutrix and has mainly pointed out that the prosecutrix
is an adopted child and her scholar register shows her date of birth as
10.8.2002, but there is no evidence on record of the real parents of the
prosecutrix who were alone in position to affirm the aforesaid date and the
prosecutrix has stated in para 10 that the date when she was adopted must be
the date when she was born. Further learned counsel has pointed out that its a
case of consensual matter. Previously also Crime No.414 of 2018 has been
registered in respect of the same applicant regarding kidnapping the
prosecutix. He has drawn Court's attention to various paras of the cross
examination of the prosecutrix, which would show that the prosecutrix had
gone with the applicant on his motorcycle and although prosecutrix states that
                                   2                          MCRC-17683-2021
applicant had threatened that he would viral her photographs, but no such
evidence has been collected by the prosecution.
      Learned counsel for the applicant has drawn the Court's attention
regarding the age of the prosecutrix as also to the judgment delivered by the
Supreme Court in the case of Alamelu vs. State, (2011) Vol.2 SCC 385 .
On these grounds bail has been sought.

      The application for bail have been opposed by the learned Panel
Lawyer for the State as well as by learned counsel for the objector submitting
that the date of birth recorded in scholar register is a relevant piece of
evidence and as per Section 35 of the Evidence Act, this evidence can be
countered only after complete examination of the witness who would prove
the aforesaid document. In the written objections, it has been mentioned that
in the year 2018, the prosecutrix had got acquainted with the accused and the
accused had taken photographs of the prosecutrix. Thereafter prosecutrix
was not in contact with the accused and on the date of incident, ie., on
1.

1.2020, when prosecutrix was on her way for her coaching class, she was stopped by the applicant and was asked to come along with him threatening that he would viral the photographs. Thereafter she was subjected to rape. However, during the arguments, learned counsel for the objector has fairly admitted that no photographs have been seized.

Considered.

It would be appropriate to peruse the case diary as also the citation which has been mentioned by the learned counsel for the applicant.

The case diary is available in the physical mode. The same be sent over. Order shall be passed after perusal of the case diary and citation relied by the learned counsel for the applicant.

Later on :

The case diary was perused, which contains the birth certificate issued by Municipal Corporation mentioning the date of birth as 10.8.2002.

Learned counsel for the applicant has submitted that this certificate has 3 MCRC-17683-2021 also been issued in view of the entries made in the adoption register and that in absence of exact date of birth because of non-availability of the real parents of the prosecutrix, a doubt as to exact date of birth is created and the benefit should go the accused.

Considered. Various citations and presumptive clauses in respect of a rape victim are structured in a manner to tilt the presumption in favour of the prosecutrix and therefore, if there is any doubt regarding the exact date of birth than the presumption would also go out in favour of the prosecutrix. Moreover, the date of birth certificate is the only relevant piece of evidence under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and the same can be put to test only through cross examination of the

concerned witness.

Hence, after duly considering the submissions, no case is made out for grant of bail to the applicant.

The bail application stands rejected.

                                                     (SHAILENDRA SHUKLA)
                                                            JUDGE

             Digitally signed by SHAILESH
SS/-         MAHADEV SUKHDEVE
             Date: 2021.07.02 13:55:47 +05'30'