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Sagar Kumar vs State Of Chhattisgarh 27 … on 1 March, 2018

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Revision No.205 of 2018
Sagar Kumar, son of Manoj Kumar Kannojiya, aged about 29 years, resident
of Village Baikunthpur, Camp-2, Chhawani, Police Station Chhawani, District
Durg, Chhattisgarh
—- Applicant
versus
State of Chhattisgarh through the Station House Officer, Police Station
Jamul, District Durg, Chhattisgarh
— Respondent

For Applicant : Shri Goutam Khetrapal, Advocate
For State/Respondent : Shri Sameer Behar, Panel Lawyer

Hon’ble Shri Justice Arvind Singh Chandel
Order on Board
1.3.2018

1. The revision is listed for hearing on admission. With the consent of

Learned Counsel appearing for the parties, the matter is heard

finally.

2. Initially, the revision was preferred against two orders dated

27.11.2017 and 30.1.2018 passed by the Additional Sessions

Judge (Fast Track Court), Durg. Thereafter, the revision, so far as

it related to against the order dated 27.11.2017 was withdrawn on

20.2.2018. Now, the instant revision is to be decided against the

order dated 30.1.2018 only.

3. A charge-sheet has been preferred against present Applicant

Sagar Kumar and two other persons, namely, Sanjay and Umesh

under Sections 354, 384 read with Section 34 of the Indian Penal

Code and Sections 8, 11(v) and 12 of the Protection of Children

from Sexual Offences Act, 2012 (henceforth ‘the Act of 2012’).

Against the present Applicant, charges were framed under

Sections 354, 384/34, 323/34 (two counts) of the Indian Penal

Code and Sections 10, 11(ii)(v), 12 of the Act of 2012.

4. The date of incident is 28.11.2016 and as per the prosecution story
2

and the documents submitted by the prosecution, the date of birth

of the prosecutrix is 17.2.1999. An application under Section 216

of the Code of Criminal Procedure has been submitted before the

Trial Court stating that the date of birth of the prosecutrix is

17.2.1998. In support of the application, birth certificate issued by

Nagar Palika Parishad Bacheli, an another certificate issued by

N.M.D.C. Apollo Central Hospital Bacheli and a copy of the birth-

death register were submitted in the Trial Court in which the date of

birth of the prosecutrix is mentioned as 17.2.1998. It was

requested before the Trial Court that the actual date of birth of the

prosecutrix is 17.2.1998 and 17.2.1999 has wrongly been entered

as her date of birth. Therefore, no case under the Act of 2012 is

made out against the present Applicant. The above-mentioned

application under Section 216 of the Code of Criminal Procedure

was rejected on the ground that what is the actual date of birth of

the prosecutrix is a subject matter of evidence. Hence, this

revision.

5. Shri Goutam Khetrapal, Learned Counsel appearing for the

Applicant submits that there is no conclusive finding of the Trial

Court on the date of birth of the prosecutrix. On the basis of the

documents filed by the Applicant, the age of the prosecutrix, on the

date of incident, was above 18 years. Therefore, it is necessary

that what is the actual date of birth of the prosecutrix should be

decided at the present stage of the matter by the Trial Court. If

after trial it will be established that the age of the prosecutrix was

above 18 years on the date of incident, the whole trial would be

vitiated.

6. On the other hand, Shri Sameer Behar, Learned Counsel

appearing for the State submits that the finding of the Trial Court is
3

just and proper.

7. I have heard Learned Counsel appearing for the parties and

perused the material available with due care.

8. From a bare perusal of the material available, it appears that

charge-sheet was filed on 28.1.2017. Prior to that, an application

dated 21.12.2016 was submitted before the Station House Officer,

Police Station Jamul, District Durg regarding date of birth of the

prosecutrix mentioning therein that the actual date of birth of the

prosecutrix is 17.2.1998. Though as per the prosecution, the

actual date of birth of the prosecutrix is 17.2.1999. A mark-sheet is

annexed with the charge-sheet mentioning the date of birth of the

prosecutrix as 17.2.1999. With the application under Section 216

of the Code of Criminal Procedure, birth certificate issued by Nagar

Palika Parishad Bacheli, the another certificate issued by N.M.D.C.

Apollo Central Hospital Bacheli and the copy of birth-death register

were submitted before the Trial Court in which the date of birth of

the prosecutrix is entered as 17.2.1998. If 17.2.1998 is the correct

date of birth of the prosecutrix, in such a circumstance, the Trial

Court has no jurisdiction to try the case. In these circumstances, if

the Trial Court gives its finding regarding age of the prosecutrix

after recording of the evidence and if the Trial Court finds that on

the date of incident, the age of the prosecutrix was above 18 years,

the whole trial would be vitiated.

9. Therefore, the impugned order dated 30.1.2018 is set aside. The

Trial Court is directed to consider the documents annexed with the

application under Section 216 of the Code of Criminal Procedure

and the Trial Court shall itself make a detailed inquiry or get an

inquiry conducted through the Station House Officer of the
4

concerned police station regarding the actual date of birth of the

prosecutrix. After the inquiry is conducted, the Trial Court shall

arrive at a finding regarding the actual date of birth of the

prosecutrix and shall thereafter pass an appropriate order in

accordance with law. In the result, the revision is allowed to the

extent indicated above.

10. A copy of this order be sent to the Trial Court forthwith for

information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
Judge
Gopal

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