The State Of Madhya Pradesh vs Anil Kumar Kori
2022 Latest Caselaw 2193 MP

                                                                        1
                                         IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                       BEFORE
                                                               SHRI JUSTICE SUJOY PAUL
                                                                          &
                                                         SHRI JUSTICE MILIND RAMESH PHADKE
                                                             ON THE 17th OF FEBRUARY, 2022

                                                     MISC. CRIMINAL CASE No. 27691 of 2021

                                             Between:-
                                             THE STATE OF MADHYA PRADESH THR. P.S. P.S.
                                             NAGOD DIST. SATNA MP (MADHYA PRADESH)

                                                                                                        .....PETITIONER
                                             (MS. NALINI GURUNG, PANEL LAWYER )

                                             AND

                                    1.       ANIL KUMAR KORI S/O PYARELAL KORI , AGED
                                             ABOUT 21 YEARS, VILL. SEMARWARA BHATWA
                                             TOLA P.S. NAGOD DIST. SATNA MP (MADHYA
                                             PRADESH)

                                    2.       DHARMU @ DHARAMRAJ CHOUDHARY S/O
                                             LALMANI CHOUDHARY , AGED ABOUT 24 YEARS,
                                             SEMARWARA BHATWA TOLA PS NAGOD
                                             (MADHYA PRADESH)

                                                                                                  .....RESPONDENTS


                                          Th is application coming on for hearing this day, JUSTICE MILIND

                                    RAMESH PHADKE passed the following:
                                                                          ORDER

Heard on the question of grant of leave to appeal against the impugned judgment dated 19.01.2021 passed in Sessions Case No.27/2020 passed by the Third Additional Sessions Judge, Nagod, District Satna.

Learned Government Advocate has relied upon Section 29 and Section 30 of the Protection of Children from Sexual Offences Act, 2012 wherein presumption has been provided where the age of the prosecutrix is below 16 years that such person has committed the offence, unless contradictory.

Learned Government Advocate for the State had assailed the paragraph 17 of the judgment with regard to the age of the prosecutrix.

Learned Government Advocate has also argued that the learned trial Court Signature Not Verified

had assumed that the prosecutix was a consenting party since she has lived in the SAN

Digitally signed by RASHMI RONALD VICTOR Date: 2022.02.18 16:43:44 IST company of the respondent for a long time but had erred in coming to the

conclusion that the age of the prosecutrix was not below 16 years.

The very finding of the Court below runs contrary to the statutory mandate ingrained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity, 'the Act'), which recognizes the date of birth recorded in the

school register.

Learned Government Advocate for appellant/State placed reliance on the judgment passed in ILR 2009 MP 3211, Nanda Vs. State of M.P. ILR , wherein it has been held that the error of margin with regard to the age as assessed by the Doctor could be six months and since the age of the prosecutrix in the ossification test done by the Radiologist as well as by the Medical Board was between 16-18 years.

We have heard the counsel at length and perused the record. Prima-facie, we find substance in the arguments of learned Government Advocate for the appellant. The Apex Court in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh reported in (2012) 9 SCC 750 has opined in para-34 as under :-

"34. ........ But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination."

(Emphasis supplied) T hus , prima-facie, the court below has committed an error in not determining the age of the prosecutrix laid down in Section 94 of the Act.

Thus, in our opinion, a case is made out for grant of leave. Accordingly, leave is granted.

The Registry shall convert this matter into an appeal. A bailable warrant of Rs.25,000/- (Rs. Twenty Five Thousand only) be issued to the respondent for a date to be fixed by the Registry.

Signature Not Verified SAN

Digitally signed by RASHMI RONALD VICTOR Date: 2022.02.18 16:43:44 IST (SUJOY PAUL) (MILIND RAMESH PHADKE) JUDGE JUDGE

RS

Signature Not Verified SAN

Digitally signed by RASHMI RONALD VICTOR Date: 2022.02.18 16:43:44 IST