The State Of Madhya Pradesh vs Nakul Daga Alias Pintu
2022 Latest Caselaw 1822 MP

                                 1
 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                              BEFORE
                  HON'BLE SHRI JUSTICE SUJOY PAUL
                                 &
             HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                      ON THE 9th OF FEBRUARY, 2022

              MISC. CRIMINAL CASE No. 41540 of 2020

        Between:-
        THE STATE OF MADHYA PRADESH THR. ITS
        P.S. P.S. TILA JAMALPURA BHOPAL (MADHYA
        PRADESH)

                                                             .....APPLICANT
        (BY SHRI S.K. MALVI, PANEL LAWYER FOR THE APPLICANT-
        STATE )

        AND

        NAKUL DAGA ALIAS PINTU S/O MOTILAL
        YADAV , AGED ABOUT 24 YEARS, SUNIL
        TAILOR HOUSE NEAR RENU MEDICOS TILA
        JAMALPURA BHOPAL (MADHYA PRADESH)

                                                          .....RESPONDENT


                    (Heard through Video Conferencing)
      Th is leave to appeal coming on for hearing this day, JUSTICE
SUJOY PAUL passed the following:
                                  ORDER

Heard on this application seeking leave to file appeal under Section 378(III) of Cr.P.C. arising out of judgment dated 24.02.2020 passed in Sessions Case No.1008/2018.

The respondent was tried for committing offences under Sections 363, 366A, 376(2)(I)(N) of the IPC & 5(L)/6 of the Protection of Children from Sexual Offences Act, 2012.

As per prosecution case, the prosecutrix was minor. Under a false pretext of ailment of prosecutrix's father, the accused took her to Indore where she was forcibly kept at a residence and was sexually assaulted/raped by the accused.

The Court below acquitted the accused mainly on the ground that the prosecutrix did not give consent for her medical examination regarding sexual

harassment. It is not proved that the accused had forcibly taken the prosecutrix from lawful custody of her parents. Thus, offences under Sections 363 and 366A of the IPC were not found proved.

Assailing the said findings, learned counsel for the State submits that the Court below in para-16 of the impugned judgment gave a finding that

prosecutrix's age was 17 years and 5 months. Thus, she was found to be a minor. In that event, her consent was inconsequential in view of the judgment of Supreme Court reported in (2013) 14 SCC 340 (Kailash alias Tanti Banjara vs. State of Madhya Pradesh).

Next limb of argument of Shri Malvi, learned counsel for the State is that once prosecutrix is found to be a minor, Section 29 of Protection of Children from Sexual Offences Act, 2012 is attracted and a presumption should have been drawn by the Court below regarding commission of rape by the accused. The Court below has miserably failed to examine the same. Once prosecutrix has deposed in the witness box regarding the commission of rape, there was no reason to disbelieve it merely because she did not undergo a medical examination. Apart from it, necessary ingredients to attract Sections 363 and 366A were also available, which has not been properly considered.

We find substance in the argument of learned counsel for the State. Section 29 of Protection of Children from Sexual Offences Act, 2012 certainly creates a presumption when a minor is subjected to a sexual assault. Apart from this, the interpretation of Section 363 and 366A of IPC, in the factual backdrop of this matter by the Court below also deserves to be examined. A case is certainly made out for grant of leave.

Accordingly, leave is granted.

Registry shall convert this matter into a Criminal Appeal. A Bailable warrant of Rs.25,000/- (Rupees Twenty Five Thousand Only) be issued to the respondent for a date to be fixed by the Registry.

             (SUJOY PAUL)                             (ARUN KUMAR SHARMA)
                JUDGE                                        JUDGE
     PK

          Digitally signed by PARITOSH KUMAR
          DN: c=IN, o=HIGH COURT OF MADHYA



PARITOS
          PRADESH, ou=JUDICIAL,
          postalCode=482001, st=Madhya Pradesh,

2.5.4.20=43c946b45c8a66c03b68676e788 802a41cc03b5b9567caf9c2c3b981b8cb65 96,

H KUMAR pseudonym=5FDD657FF77E3DB41E52E72 D7A39EEED5DBC7BA4, serialNumber=678DC301994B496012A96 43D92E6C6335F11A93DA54F2DFB6E44B8 B7A45044FC, cn=PARITOSH KUMAR Date: 2022.02.10 13:29:25 +05'30'