Rohit @ Madhu Jhariya vs The State Of M.P
2022 Latest Caselaw 3964 MP

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                           IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                    CRA No. 4989 of 2021
                                       (ROHIT @ MADHU JHARIYA Vs THE STATE OF M.P AND OTHERS)

                      Dated : 23-03-2022
                             Shri Brajesh Rajak, learned counsel for appellant.
                             Shri A.S.Baghel, learned Dy. Govt. Adv. for respondent -State.

Shri Shailendra Singh Thakur, learned counsel for objector. Heard on IA No.1598/22 for suspension of remaining jail sentence and grant of bail.

The appellant has been convicted for the offence punishable under Section

363 of IPC and sentenced to undergo RI for three years and fine of Rs.1000/-, under Section 366 of IPC and sentenced to undergo RI for five years and fine of Rs.1000/-, under Section 366-A of IPC and sentenced to undergo RI for five years and fine of Rs.1000/-, under Section 376(2)(N) of IPC and sentenced to undergo RI for five years and fine of Rs.5000/-, under Section 376-D of IPC and sentenced to undergo RI for twenty years and fine of Rs.5000/- and under Section 506-B of IPC and sentenced to undergo RI for one year and fine of Rs.1000/- with default stipulations.

Learned counsel for the appellant by taking this Court to the prosecution

story submits that as per allegation, prosecutrix was forcibly taken by the appellant and co-accused persons and they committed rape on her. Victim is held to be minor by the Court below. Criticizing the said findings regarding age of the prosecutrix Shri Rajak, learned counsel for the appellant placed reliance on the judgment of this Court in Rabiya Bano Vs. Rashid Khan (M.Cr.C. No.7959 of 2017) decided on 31.8.2017. It is submitted that in view of the principle laid down, the age determination on the basis of Admission Register was impermissible, moreso, when source of such entry was not established before the Court below.

It is further argued that FIR was lodged against unknown person whereas as per prosecution story Sneha, younger sister of victim informed her mother that appellant took away the prosecutrix. Thus, FIR is highly doubtful. A person Signature SAN Not Verified namely Munna Master found the victim and informed the police whereas neither Digitally signed by KRISHAN KUMAR CHOUKSEY Sneha nor Munna Master were examined before court below. Thus, chain of Date: 2022.03.25 12:50:50 IST

events were not established which causes serious dent to the story of prosecution.

Next contention is based on the statement of victim recorded under Section 164 of Cr.P.C. In that statement, it is mentioned that the victim along with parents remained in police station between 14.4.2018 to 17.4.2018. Thus, it appears that

they were tutored by police to depose in a particular manner. In absence of Ossification Test which should have been conducted in view of statement of P.W.7, the age so determined is erroneous and it cannot be said with certainty that victim was a minor. Lastly, it is submitted that medical evidence does not conclusively support the prosecution story, although, F.S.L. report supports the story.

Prayer is opposed by Shri Baghel, learned Dy. Government Advocate and Shri Thakur, learned counsel for objector.

We have heard the parties at length and perused the objection and the record.

When Juvenile Justice (Care and Protection of Children) Act 2000 (In short 'the Act of 2000') came into being, Rules were appended with it. Rule 7 of the Act of 2000 determines the statutory procedure for determination of age of a victim. Almost pari-materia / analogous provision became part of main statute of Section 94 of Juvenile Justice (Care and Protection of Children) Act 2015 (In short 'the Act of 2015'). The judgment of this Court on which reliance is placed by Shri Rajak is based on a judgment of Supreme Court in Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp. SCC 604. Needless to emphasize that Birad Mal's case is not based on the Juvenile Justice Act or the Rules made thereunder. Prima-facie judgment of Supreme Court cannot be read as a statute or as Euclid's Theorem. It depends on governing statutory provisions which prescribes the method for determination of age. When the Juvenile Justice Act came into being, a statutory procedure was prescribed for determination of age. After that, Supreme Court in Ashwani Kumar Saxena Vs. State of Madhya Pradesh (2012) 9 SCC 750 opined as under :

"34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc.

There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. 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."

Recently, Supreme Court in Rishipal Singh Solanki Vs. State of Uttar

Pradesh and others 2021 SCC On Line SC 1079 in para 34 opined as under:

"34. . . . . . . . .

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., Section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of document mentioned in Section 94(2) of the JJ Act, 2015."

In the light of the aforesaid, prima-facie we are unable to doubt the age so determined by the Court below.

Sections 29 and 30 of the Protection of Children from Sexual Offence Act creates presumption against the accused person unless proved otherwise. The prosecutrix statement in the Court could not be demolished. It is supported by F.S.L. report.

The nature of crime is very serious. For these cumulative reasons, at this stage, no case is made out for suspension of remaining jail sentence and grant of bail.

Accordingly, without expressing any conclusive opinion on merits, IA No.1598-/2022 is rejected.

      (SUJOY PAUL)                               (DWARKA DHISH BANSAL)
         JUDGE                                          JUDGE

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