Jitendra Kushwah vs The State Of Madhya Pradesh
2022 Latest Caselaw 9684 MP

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            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR

                                      BEFORE

     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                         ON THE 14th OF JULY, 2022

      MISCELLANEOUS CRIMINAL CASE NO. 32002 of 2022

       Between:-

       JITENDRA KUSHWAH S/O SHRI
       RAMHET KUSHWAH, AGED ABOUT
       24     YEARS,    OCCUPATION
       AGRICULTURIST, R/O SHERPUR,
       POLICE    STATION     ENDORI,
       DISTRICT   BHIND    (MADHYA
       PRADESH),     CURRENT     R/O
       VILLAGE    TILOURI,    POLICE
       STATION MALANPUR, DISTRICT
       BHIND (MADHYA PRADESH)

                                                               ........PETITIONER

       (BY SHRI ANIL KUMAR MISHRA - ADVOCATE)

       AND

       STATE OF            MADHYA           PRADESH
       THROUGH             POLICE            STATION
       DISTRICT            BHIND            (MADHYA
       PRADESH)
                                                             ........RESPONDENT

        (BY SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
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       This application coming on for hearing this day, the Court passed
the following:
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                                 ORDER

Case Diary is available.

This sixth application under Section 439 of CrPC has been filed for grant of bail. Fifth application of the applicant was dismissed by order dated 13.05.2022 passed in M.Cr.C. No.22895/20202.

The applicant has been arrested on 29.04.2021 in connection with Crime No.348/2018 registered at Police Station Mow, District Bhind for offence under Sections 363, 366-A, 376 of IPC and Section 3/4 of POCSO Act.

It is submitted by the counsel for the applicant that although previous bail application of the applicant has already been rejected on merits after considering the judgment passed by the Supreme Court in the case of Independent Thought Vs. Union of India and another reported in (2017) 10 SCC 800, but it is doubtful as to whether the prosecutrix was minor on the date of incident. It is further submitted that the Supreme Court while pronouncing the judgment in the case of Independent Thought (Supra) has not considered that there are certain traditions and customs which permits the marriage of a minor girl. Even otherwise, at least 43% of marriages are of minor girls and these important aspects have been lost sight by the Supreme Court, therefore, this Court must take a sympathetic view to grant bail. It is further submitted that Section 35 of the Evidence Act would not be applicable because the initial burden is on the prosecution to show that official record was maintained in discharge of official duties. There is nothing on record to show the basis on which date of birth of the prosecutrix was recorded as per the previous of Madhya Pradesh Date of Birth (Entries in the School Register) Rules, 1973.

Per contra, the application is vehemently opposed by the counsel

for the State. It is submitted that the Supreme Court in the case of Independent Thought (supra) has read down Exception 2 to Section 375 of IPC and held that physical relationship with his own wife below the age of 18 years would be an offence under Section 376 of IPC. As per the school record, date of birth of the prosecutrix is 08.05.2001, whereas she eloped on 30.11.2018. Admission was made by brother of the Prosecutrix (PW-2) that the prosecutrix is about 21-22 years of age. If the date of birth of the prosecutrix is considered in the light of the date of birth mentioned in the school record, then it is clear that on the date when the prosecutrix eloped, she was 17 years and 6 months old. The prosecutrix eloped in the month of November, 2018, whereas the evidence of brother of the prosecutrix (PW-2) was recorded on 13.09.2021, i.e., after 3 years. Even the evidence of this witness that the prosecutrix is aged about 21 years, would clearly corroborate the date of birth mentioned in the school record. It is further submitted that so far as the judgment passed by the Supreme Court in the case of K. Dhandapani Vs. The State by the Inspector of Police passed in Criminal Appeal No. 796/2022 (SLP (Crl.) No.9698/2019) is concerned, it is clear from the said order that the judgment passed by the Supreme Court in the case of Independent Thought (Supra) was not taken into note off. Furthermore, the said order appears to have been passed in exercise of power under Article 142 of the Constitution of India. The Supreme Court in the case of K. Dhandapani (supra) has held that since the prosecutrix is residing with the accused, then in order to protect the family life, conviction of the accused can be set aside.

Heard the learned counsel for the parties.

So far as the age of the prosecutrix is concerned, it is yet to be decided by the Trial Court. It would not be appropriate for this Court to

give any finding at this stage. According to the school record, the prosecutrix was minor on the day when she eloped with the applicant. Previous application has already been dismissed in the light of the judgment passed by the Supreme Court in the case of Independent Thought (supra). Furthermore, according to the prosecution case, the prosecutrix was below the age of 18 years on the date of incident, therefore, in the light of the judgment passed by the Supreme Court in the case of Anversinh alias Kiransinh Fatesinh Zala Vs. State of Gujarat reported in (2021) 3 SCC 12, if a minor girl leaves her house on the enticement by the accused, then still offence under Sections 363, 366 of IPC would be made out. Accordingly, no case is made out for taking contrary view in the matter.

The application fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Abhi ABHISHEK CHATURVEDI 2022.07.15 19:39:16 +05'30'