The State Of Madhya Pradesh vs Pankaj Soni
2022 Latest Caselaw 1824 MP

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

             MISC. CRIMINAL CASE No. 42683 of 2020

       Between:-
       THE STATE OF MADHYA PRADESH THROUGH
       P.S. GAUTAM NAGAR HOUSE OF MUNNE KULI
       LANE NO.4 BAG UMRAO DULHA, P.S.
       AISHBAG, BHOPAL M.P. (MADHYA PRADESH)

                                                          .....PETITIONER
       (BY SHRI AKSHAY PAWAR, LEARNED PANEL LAWYER )

       AND

       PANKAJ SONI S/O SHRI KAUSHAL KISHORE ,
       AGED ABOUT 22 YEARS, R/O VILLAGE-
       KURGAON, P.S. PANDOKHAR, DISTT.-DATIYA.
       PRESENTLY R/O, HOUSE NO.48, HOUSING
       BOARD COLONY, NARIYALKHEDA, BHOPAL.
       (MADHYA PRADESH)

                                                        .....RESPONDENTS


                   (Heard through Video Conferencing)
      This appeal coming on for admission this day, JUSTICE SUJOY

PAUL passed the following:
                                 ORDER

Heard on the application under Section 378 (1) and (3) of Cr.P.C seeking leave to appeal against the impugned judgment dated 17.02.2020, passed by 18th Additional Sessions Judge/Special Judge, (Protection of Children from Sexual Offence) Act 2012, Bhopal in S.T.No.402/2018, whereby respondent- accused has been acquitted from the offence punishable under 342, 377 and Section 3/4, 11 (I) (V)/12 of (Protection of Children from Sexual Offence) Act 2012.

As per prosecution story the respondent - accused told the victim that his uncle and aunt are calling him. Under this pretext, he took the victim to his house wherein nobody else was present. The respondent - accused compelled the victim to watch certain filthy videos and committed

unnatural sex with him.

Learned counsel for the applicant submits that in para 17 of the judgment of court below opined that age of the victim was fourteen years. Thus, Section 29 and 30 of (Protection of Children from Sexual Offence) Act 2012 are attracted and the court below should have drawn a

presumption of sexual assault unless the defence is able to prove it otherwise. Reliance is place on 2017 (2) SCC 51, (State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny).

Learned Panel Lawyer urged that court below has erred in acquitting the respondent - accused on the ground of :-

(1) delay in lodging the FIR.

(2) alleged enmity between the mother of respondent - accused and mother of the victim relating to demand of money.

(3) Medical evidence wherein no injury was found inside the anus. By taking this court to the MLC, it is submitted that possibility of rare penile touch can not be overruled. In this backdrop, the court below has committed an error in acquitting the respondent- accused.

We have heard learned counsel for the applicant at length and perused the record.

Indisputably the victim was found to be of fourteen years of age. Thus, prima facie, we find substance in argument of learned Panel Lawyer that Sections 29 and 30 of (Protection of Children from Sexual Offence) Act 2012 are attracted. The victim has also categorically deposed before the court below about commission of unnatural sex by the respondent - accused. A case is thus made out for grant of leave to appeal. Accordingly, the leave is granted.

The Registry is directed to convert this M.Cr.C into Criminal Appeal. Bailable warrant of Rs.25,000/- (Rupees Twenty Five Thousand only) be issued to the respondent-accused for a date to be fixed by the Registry.

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




Signature Not Verified
  SAN




Digitally signed by BASANT KUMAR
SHRIVAS
Date: 2022.02.10 13:13:30 IST