The State Of Madhya Pradesh vs Aashish
2024 Latest Caselaw 12498 MP

Madhya Pradesh High Court

The State Of Madhya Pradesh vs Aashish on 3 May, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE CRA No. 2456 of 2024 (THE STATE OF MADHYA PRADESH Vs AASHISH)

Dated : 03-05-2024 Shri G S Chouhan, learned Dy. GA for the appellant/State.

Heard on I.A.Nos.2990/2024, 2991/2024 and 3418/2024.

2. I.A.No.2990/2024 is preferred under Section 378(3) of Cr.P.C. r/w Section 14-A(1) of SC/SC (POA) Act, 1989 for permission for leave to appeal against the judgment dated 11.10.2023 in Special Case No.150/2022 by Special

Judge, POCSO Act, 2012 Dewas whereby the non-appellant has been acquitted from the charges under Section 363, 366, 376(2)(N) and 506 Part-II of the IPC and Section 6 r/w section 5(L) of the POCSO Act, 2012 and Section 3(2)(v), 3(1)(w)(ii) of SC/ST (POA) Act, 1989.

3. I.A.No.2991/2024 and I.A.No.3418/2024 are filed for condonation of delay in filing the present appeal.

4. The delay as calculated by the office is 24 days and reasons for the delay is mentioned as the time was consumed in obtaining the sanctions from the Law and Legislative Affairs Department, Government of Madhya Pradesh,

Bhopal and intimation of the sanction to the office of Advocate General.

5. The details of the time consumed are mentioned in para 2 of the application supported with an affidavit of Smt. Babita Bamniya, Deputy Superintendent of Police, Dewas.

6. Considering the para 2 of I.A.No.2991/2024 and I.A.No.3418/2024, the delay of 24 days is condoned and I.A.No.2991/2024 and I.A.No.3418/2024 are hereby allowed.

7. Perused the judgment dated 11.10.2023 and the record of trial Court, the non-appellant was prosecuted for kidnapping the victim child and committing penetrative sexual assault towards child victim belonging to Bhilala Tribe listed on serial no.7 in the list of Scheduled Tribe notified for the M.P. State under Article 342 of the Constitution of India whereas the non-appellant does not belong to SC or ST category.

8. In the case of State of Maharaashtra vs Sujay Mangesh Poyarelar reported in AIR 2008 (9) SCC 475 the parameters while considering the application under Section 378(3) of the CrPC are laid down that the Court must apply its mind, consider whether prima facie case has been made out or

arguable points have been raised and not whether the order of acquittal would or would not be set aside.

9. Para 20 of Sujay Mangesh Poyarelar (supra) is being referred as below:-

"In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside."

10. On perusal of record of the trial Court and impugned judgmnent it discloses that the prosecution produced the record of the date of birth of the victim as 19 September 2006 in the form of Scholar Register but the trial Court disbelieved the evidence in the form of Scholar Register and relied on the date of birth of the victim mentioned in Aadhar Card as 19.09.2002.

11. It is argued on behalf of the State that Aadhar Card is not the

document to be relied in presence of Scholar Register under Section 94(2) of

the Juvenile Justice (Care and Protection of Children) Act, 2015.

12. It is also argued that being a victim as a child, the findings of the consent of the victim is perverse.

13. Considering the above arguments, arguable point have been raised. Accordingly, the parameters as mentioned in the case of Sujay Mangesh Poyarelar (supra) are satisfied and I.A.No.2990/2024 filed by the State under Section 378(3) of the Cr.P.C. is allowed and permission for leave to appeal is granted.

14. The appeal is already registered as Criminal Appeal No.2456/2024. So, on payment of process fee, the office is directed to issue bailable warrant of Rs.40,000/- against the non-appellant.

15. The non-appellant is directed to furnish a bail bond in the sum of Rs.40,000/- with separate surety in the like amount to the satisfaction of the trial Court of his appearance before the Registry of this Court on 12.08.2024 and all other subsequent dates as may be fixed by the office in this behalf.

List the case after four months.

                                (S. A. DHARMADHIKARI)                                 (GAJENDRA SINGH)
                                         JUDGE                                             JUDGE

                           VS