Rajasthan High Court - Jodhpur
Deva Ram vs State on 1 February, 2021
Bench: Pushpendra Singh Bhati
(1 of 3) [CRLMP-4996/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4996/2019
Deva Ram S/o Shri Jeeva Ji, Aged About 30 Years, B/c Ghanchi,
R/o Kalandri, Tehsil And District Sirohi.
----Petitioner
Versus
1. State, Through Pp
2. Rata Ram S/o Chena Ji, B/c Ghanchi, R/o Kalandri, Tehsil
And District Sirohi.
----Respondents
For Petitioner(s) : Mr. B.S. Rathore
For Respondent(s) : Mr. Farzand Ali, AAG a/w Mr. Gaurav
Singh, PP
Mr. Rakesh Arora
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
01/02/2021
In wake of onslaught of COVID-19, abundant caution is being
taken while hearing the matters in Court.
Learned counsel for the petitioner makes a submission that
as to what should be taken as the age of the prosecutrix
particularly when the ossification test points out that the age of
the prosecutrix can be between 18-20 years and the incident in
question has happened nine months ago. Learned counsel for the
petitioner submits that Adhar Card, Bhamashah Card and Voter
Cause List all indicate that the age of the petitioner is 01.01.1999
and therefore she is major. Learned counsel for the petitioner
further submits that the original FIR was lodged under Section 376
of the IPC. Learned counsel for the petitioner submits that the
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dispute arose when the Investigating Officer believing the
statement of the prosecutrix has got the ossification test
conducted and is taking the lower limit of the ossification test of
the prosecutrix as benchmark to apply POCSO law. Learned
counsel for the petitioner has relied upon the judgment of the
Hon'ble Delhi High Court in the matter of Shewta Gulati and
Anr. vs. The State Govt. of Nct of Delhi delivered in CRL. REV.
P.195/2018. Learned counsel for the petitioner has also relying to
the judgment of Rajak Mohammad vs. The State of Himachal
Pradesh delivered in Criminal Appeal No.(S).1395/2015 by the
Hon'ble Apex Court.
Learned AAG along with the Public Prosecutor and learned
counsel for the complainant submit that the conclusion of the
Investigating Officer is that the charge-sheet shall be submitted in
the POCSO Court. The prosecution team further submits that the
Investigating Officer had a prerogative to accept the age of the
prosecutrix as per the lower limit of the ossification test and thus
the conclusion arrived at is correct in the eye of law.
This court sees that the best way to determine the age
stipulated under Section 94 of the Juvenile Justice Act. In the
interest of justice this Court sees that the petitioner cannot be
rendered remedy-less and made to undergo a futile trial of POCSO
Act which may at the end come to a conclusion that the POCSO
laws were not applicable.
Thus in the interest of justice, it is directed that as soon as
the charge-sheet is filed and before the charges are framed the
POCSO Court shall adopt all necessary procedure provided in law
to resolve the dispute of age and come to a speaking conclusion
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so as to determine the age of the prosecutrix and thereafter act
accordingly. In case the conclusion of the POCSO Court in such
proceedings is that the prosecutrix is not a major then the
petitioner shall be tried under the IPC law and in case the
conclusion arrived at is that she was a minor, the learned POCSO
Court shall proceed with the regular trial after framing the charge-
sheet in accordance with law.
The petitioner shall be at liberty to come back to this Court,
if need arises. It is made clear that this order has been made only
looking into the peculiar facts of this case.
The instant Criminal Misc. petition is disposed of. All pending
application stand disposed of, accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
144-Arti/Jitender//-
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