Lala Ram vs State Of Rajasthan
2021 Latest Caselaw 17574 Raj

                                        (1 of 5)                  [CRLR-1491/2019]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR

S. B. Criminal Revision Petition No. 1491/2019

Lala Ram S/o Shri Amara Ram, aged about 18 years, By caste Garasiya, R/o Village Purawaton Ki Fali, Churali Khera, Isra, P.S. Swroop Ganj, District Sirohi (Rajasthan).

(Presently lodged in District Jail, Sirohi).

----Petitioner Versus State of Rajasthan

----Respondent

For Petitioner(s) : Mr. Shambhoo Singh Rathore For Respondent(s) : Mr. S.K. Bishnoi, Public Prosecutor

despite service

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

November 24, 2021

The instant criminal revision petition under Section 397/401

Cr.P.C. has been preferred by the petitioner assailing the order

dated 10.10.2019 passed by Special Judge, Protection of Children

from Sexual Offences Act, 2012 Cases, Sirohi in Special POCSO

Case No. 11/2019 (State of Rajasthan Vs. Lalaram), whereby the

application under Section 34 of Protection of Children from Sexual

Offences Act, 2012 filed by the petitioner to treat him as child and

release him, was dismissed.

Brief facts of the case in short are that on 11.12.2018, an

F.I.R. was lodged by father of the victim against the petitioner

with the allegation that he raped his minor daughter. The victim

delivered fetus of eight months on 12.12.2018. The accused-

petitioner was arrested on 25.12.2018. After investigation,

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challan was filed by the police against the petitioner. During trial,

the petitioner filed an application on 22.04.2019, wherein it was

stated that he had studied in the school. In the school record, his

date of birth was entered as 22.06.2001. The incident was

alleged to be taken place before eight months from lodging the

report. Since the police did not inquire about age of the accused-

petitioner during the investigation, though, he being less than 18

years of age, was juvenile at the time of incident, hence, the

prayer was made to determine age of the petitioner and release

him from custody.

At the request of the petitioner, enquiry was made by the

Special Judge, POCSO Cases, Sirohi. During enquiry, statements

of Amara Ram, father of the petitioner and Rahul Meena,

Headmaster of the school, in which he was studying, were

recorded. Being not convinced with the statements and the school

record, the trial court ordered for conducting medical examination

of the petitioner. In pursuance whereof, the petitioner was

examined by the Medical Board on 25.09.2019. As per report of

medical examination, radiological age of the petitioner was found

between 20-22 years. After completion of enquiry, the trial court

by passing the order impugned found that the petitioner was not

'child'. Relying upon the judgment of the Hon'ble Supreme Court

in the case of Birad Mal Singhvi Vs. Anand Purohit reported in

1988 AIR 1796, it was observed by the trial court that age

mentioned in the school record was not substantiated by

statement of father of the child. Placing reliance on the opinion of

the Medical Board, the child was not found juvenile at the time of

incident. Aggrieved with impugned order passed by the trial

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court, instant revision petition has been preferred by the

petitioner.

Heard learned counsel for the parties and perused the

material on record as well as order impugned.

Learned counsel for the petitioner has submitted that the

trial court grossly erred in ordering medical examination of the

accused and placing reliance on it, in spite of availability of school

record, which is in favour of the petitioner. The medical opinion is

not conclusive proof of the age. He has further submitted that the

incident took place more than 8 months before lodging the F.I.R.

on 11.12.2018 and the medical examination of the petitioner was

conducted on 25.09.2019. It means that the incident took place

around one and a half years before the date of medical

examination of the petitioner. In the medical examination report,

radiological age of the petitioner was found between 20-22 years.

He has further submitted that on the basis of medical report, it

cannot be concluded that the petitioner had attained the age of 18

years at the time of incident. As per legal proposition of law,

there can be a variation of 2-3 years of age from radiological age.

Hence, the trial court was not correct in arriving at the conclusion

that the petitioner was not a child on the relevant date.

Learned counsel for the petitioner has relied upon the

judgments of the Hon'ble Apex Court in the case of Ashwani

Kumar Saxena Vs. State of M.P. reported in (2012) 9 SCC

750 as well as Birad Mal Singhvi Vs. Anand Purohit reported

in 1988 AIR 1796.

On the other hand, learned Public Prosecutor while

supporting the order impugned passed by the trial court, has

submitted that age of the petitioner mentioned in the school

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certificate could not be substantiated by oral evidence. The trial

court rightly passed the order impugned, which did not warrant

any interference.

This Court is in agreement with the arguments advanced by

learned counsel for the petitioner that on the basis of medical

report, it cannot be with certainty assumed that the petitioner had

attained age of 18 years at the time of committing the offence.

There is no dispute regarding legal proposition that relevant date,

for the purpose of trial of a child in conflict with law, is the age at

the time of commission of offence. As stated earlier, in the

present case, incident took place more than one and a half years

before the date of conducting medical examination of the

petitioner. The juvenility of the child is further corroborated from

school record of the petitioner wherein his date of birth has been

mentioned as 22.06.2001. In the present case, this Court need

not to deal with the question of powers of the trial court in

ordering medical examination of the petitioner to be conducted by

the Medical Board. Suffice it to say that the medical report is not

conclusive proof of the age and it has to be considered along with

other evidence, which in the present case is also in favour of the

petitioner. Since the petitioner is accused, hence, as per settled

legal proposition of law laid down by the Hon'ble Apex Court, while

appreciating the evidence adduced on behalf of the accused in

support of the plea that he is juvenile, when two views are

possible on the point of juvenility of the accused, the Court should

take the view, which is in favour of the accused.

In the present case also, keeping in mind the above principle

of law, on the basis of medical opinion, the petitioner may or may

not be juvenile, hence, this Court finds that he should be treated

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juvenile at the time of occurrence esspecially looking to the school

record in favour of the petitioner. The trial court was, thus, not

correct in arriving at the conclusion that the petitioner was not a

juvenile.

Resultantly, the present criminal revision petition is allowed.

The impugned order dated 10.10.2019 passed by the trial court is

set aside. The trial court is directed to send the petitioner before

the competent Juvenile Justice Board for dealing the matter as per

provisions of the Juvenile Justice Act.

(RAMESHWAR VYAS),J

Inder/-

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