Kalyan @ Kalyan Vanshkar vs The State Of Madhya Pradesh
2021 Latest Caselaw 722 MP

THE HIGH COURT OF MADHYA PRADESH MCRC-12913-2021 Kalyan @ Kalyan Vanskar Vs. State of MP

Gwalior, Dated : 15-03-2021

Shri Vivek Kumar Vyas, Counsel for the applicant.

Shri Lokendra Shrivastava, Counsel for the State.

Case Diary is available.

This second application under Section 439 of Cr.P.C. has been

filed for grant of bail. First application of the applicant was dismissed

as withdrawn by order dated 28.12.2020 passed in M.Cr.C.

No.52244/2020.

The applicant has been arrested on 04.12.2020 in connection

with Crime No.205/2020 registered by Police Station Dinara District

Shivpuri for offence punishable under Sections 363, 376 of IPC and

Section 3/4 of POCSO Act.

On 08.03.2021 a statement was made by the counsel for the

applicant that the prosecutrix has been examined and she has not

supported the prosecution case. Accordingly, time was granted to file

the deposition-sheets of evidence of the prosecutrix. The applicant

has filed the copy of the deposition-sheets of the evidence of the

prosecutrix, in which, she had stated that she had voluntarily eloped

with the applicant and had performed marriage in Jhansi and,

thereafter, they were residing like husband and wife.

According to the prosecution story, date of birth of the

prosecutrix according to school record is 15.12.2003. Even otherwise,

THE HIGH COURT OF MADHYA PRADESH MCRC-12913-2021 Kalyan @ Kalyan Vanskar Vs. State of MP

according to the ossification test report, her age is 16 to 18 years.

Although in the light of the school record, this Court is not required

to consider the ossification test report, but even then if it is

considered, then it is clear that date of birth of the prosecutrix

recorded in the school record co-relates with the margin of error in

the ossification test report.

Since the prosecutrix was minor and even if she has married

then in the light of judgment passed by the Supreme Court in the case

of Independent Thought Vs. Union of India and another reported

in (2017) 10 SCC 800, the act of the applicant would still be an

offence under Section 376 of IPC as Exception 2 of Section 375 of

IPC has been read down by the Supreme Court.

In view of the fact that the prosecutrix is minor, no case is

made out for grant of bail.

The application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

Abhi ABHISHEK CHATURVEDI 2021.03.15 17:26:27 +05'30'