The State Of Madhya Pradesh vs Raj Kumar Dongre
2022 Latest Caselaw 2212 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. 30011 of 2021

                                              Between:-
                                              THE STATE OF MADHYA PRADESH THR. SHO P.S.
                                              HANUMANTAL JABALPUR (MADHYA PRADESH)

                                                                                                         .....APPLICANT
                                              (BY SHRI DILIP PARIHAR, PANEL LAWYER)

                                              AND

                                              RAJ KUMAR DONGRE S/O URKUD DAS DONGRE ,
                                              AGED ABOUT 27 YEARS, GRAM SONJHARA P.S.
                                              RAMPAYLI   DISTT.  BALAGHAT    (MADHYA
                                              PRADESH)

                                                                                                       .....RESPONDENT


                                            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.

This is application filed under Section 378(III) read with Section 378(I) of Cr.P.C. seeking leave to appeal against the impugned judgment dated 13.12.2020 in

Sessions Case No.171/2017 passed by 11 th Additional Sessions Judge/ Special Judge (Protection of Children from Sexual Offence), Jabalpur.

It is argued by the learned Panel Lawyer on behalf of the applicant/State that the learned trial Court though in Para 21 of the judgment relying on the extract of scholar register and other evidence has held that the prosecutrix was minor at the time of incident i.e. was aged about 14 years and was proved to be a child within the meaning of Section 2(1)(D) of Protection of Children from Sexual Offences, Act 2012, acquitted the respondent on the ground of contradictions, omissions and embellishments, inconsistency and probabilities in the statements of the Signature Not Verified SAN prosecutrix and the other witnesses.

Digitally signed by SHUBHAM THAKKER Date: 2022.02.18 16:53:00 IST Learned Panel Lawyer has further argued that the statement of the

prosecutrix were consistent starting from recording the statement of under Section 161 and 164 of Cr.P.C. as well as before the learned trial Court and she had specifically named the respondent to have committed the incident.

Learned Panel Lawyer has also argued that taking a hypothetical view, the

medical evidence produced by the prosecution was also discarded by the learned trial Court and thus, the acquittal of the respondent is bad in law.

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.

                                        (SUJOY PAUL)                                        (MILIND RAMESH PHADKE)
                                           JUDGE                                                     JUDGE
                                      Shub



Signature Not Verified
  SAN




Digitally signed by SHUBHAM THAKKER
Date: 2022.02.18 16:53:00 IST