Bhajju Alias Ajay vs The State Of Madhya Pradesh
2023 Latest Caselaw 884 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                               ON THE 16 th OF JANUARY, 2023
                                             CRIMINAL APPEAL No. 3338 of 2017

                           BETWEEN:-
                           BHAJJU ALIAS AJAY S/O SHRI SWAMILAL ALIAS
                           SUMIYA, AGED ABOUT 20 YEARS, RESIDENT OF
                           JHIKMAU, P.S MAHARAJPUR, DISTRICT CHHATARPUR
                           (MADHYA PRADESH)

                                                                                          .....APPELLANT
                           (BY SHRI RAJKAMAL CHATURVEDI, ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH THR. P.S
                           MAHARAJPUR CHHATARPUR (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                           (BY SHRI PRAMOD THAKRE, GOVT. ADVOCATE)

                                 Th is appeal coming on for hearing this day, t h e court passed the
                           following:
                                                                  ORDER

1. Appellant has filed this appeal under Section 374(2) of CrPC, 1973.

2. Appellant has been convicted for offence under section 376(2)(jha)(da) of IPC and Section 5(J)(ii) and (L) read with section 6 of POCSO Act and sentenced to undergo R.I for 10 years with fine of Rs.5,000/- with default stipulation of 6 months R.I.

3. It is submitted by learned counsel for the appellant that application filed by the appellant for suspension of sentence may be considered in accordance with law or appeal may be heard finally as appellant has already

Signature Not Verified completed more than 7 years in jail.

Signed by: MONSI M SIMON Signing time: 1/18/2023 1:15:22 PM

4. Learned Govt. Advocate appearing for the State also submitted that matter can be heard finally.

5. With the consent of both the parties, appeal is heard finally.

6. Trial court has taken into consideration statement of prosecutrix P.W-

2. P.W-2 has stated in her deposition that appellant is known to her. He used to visit her house and violated her. When prosecutrix got pregnant she had given information to her mother and father. Trial court has also exhibited written application (Exhibit P/1) given by prosecutrix and she had admitted her signature on it. Prosecutrix has also stated that blood samples for DNA was taken. DNA report from FSL has also been received. As per DNA report,

Exhibit P/31, conclusive finding has been given that appellant is biological father and prosecutrix is mother of new born baby. Trial court has given a finding that date of birth of prosecutrix is 14.8.2003 and she is aged 11 years and 8 months at the time of incident. Considering the aforesaid facts and circumstances, appellant has been convicted by the trial court.

7. Learned counsel for the appellant in the appeal has stated that finding of trial court is perverse and is not based on any evidence. There is delay in lodging of F.I.R of 7 to 8 months. Prosecution has failed to prove that prosecutrix is minor and her date of birth is 14.8.2003. Date of birth in the school entry register was made without any basis and witness has stated that no document was shown for making entry of date of birth. No ossification test was carried out. In these circumstances, trial court had committed an error in convicting the appellant.

8. Learned Govt. Advocate supported the judgment passed by the trial court.

Signature Not Verified Signed by: MONSI M SIMON Signing time: 1/18/2023 1:15:22 PM

9. Heard the learned counsel for the parties.

10. Prosecutrix (P.W-2) has stated that appellant has violated her and there is scientific report on record which shows that appellant as well as prosecutrix is biological father and mother of new born baby. In view of same it is established by prosecution that appellant had violated the prosecutrix.

11. Only question before this Court is whether prosecutrix was minor at the time of incident or not and whether there is delay in lodging of F.I.R which dents prosecution story.

12. Trial court has taken into consideration Exhibit P/7 which is Admission Register, Exhibit P/8 Admission Form and Exhibit P/9 Date of Birth certificate of prosecutrix. In all the said documents date of birth of prosecutrix has been mentioned as 14.8.2003. Trial court has also taken into consideration the judgment passed by the Apex Court in the case of Jarnail Singh vs. State of Haryana, (2013) 7 SCC 283 and Section 94 of Juvenile Justice Act, 2015. Trial court has given finding of age of prosecutrix which is based on evidence and no perversity or error is found in the finding given by the trial court. In view of same it is evident that prosecutrix was minor at the time when incident has taken place.

13. Delay in lodging F.I.R has been satisfactorily explained by prosecution. Prosecutrix is minor aged only about 12 years. She disclosed the

incident when her pregnancy was discovered and thereafter report was lodged at Police Station.

14. Considering totality of facts and circumstances of the case and the evidence available on record, appeal filed by the appellant is dismissed.

Signature Not Verified Signed by: MONSI M SIMON Signing time: 1/18/2023 1:15:22 PM

(VISHAL DHAGAT) JUDGE mms

Signature Not Verified Signed by: MONSI M SIMON Signing time: 1/18/2023 1:15:22 PM