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Arvind Verma vs State Of U.P. & Another on 20 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 31 Reserved

Case :- U/S 482/378/407 No. – 927 of 2021

Applicant :- Arvind Verma

Opposite Party :- State Of U.P. Another

Counsel for Applicant :- Jyotinjay Verma

Counsel for Opposite Party :- G.A.

Hon’ble Mrs. Saroj Yadav,J.

1. This petition under Section 482 Cr.P.C. has been preferred with a prayer “to set aside the impugned order dated 11.02.2021 in S.S.T. POCSO Case No. 20/2019 arising out of F.I.R. No. 0191 of 2018, under Section 354 IPC and Section 7/8 POCSO Act, Police Station Rajesultanpur, District Ambedkar Nagar and in the interest of justice allow the application making request for medical examination for determination of age of the victim and pass any other order, which it deems fit in the facts and circumstances of the case. ”

2. Brief facts of the case necessary for disposal of this petition are as follows:-

An F.I.R. bearing Case Crime No. 191/2018, under Section 354 Indian Penal Code (in short “I.P.C.”) was lodged on the basis of the written complaint moved by the victim herself alleging that on 04.10.2018 at about 7 PM when she was on way to home after taking tuition, Arvind Verma caught her and tried to drag in the field. She raised hue and cry then he left her and ran away. She called on Phone No. 1090 (Women Help Line) and again on Phone No. 1076 (Chief Minister’s Help Line). In her home her parents were not there except her grand-father. When she went to complain about the act of the accused with one of his family member Janardan Verma, he started fighting.

3. After investigation charge sheet was submitted. Section 7/8 of The Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”) was added finding the victim minor. The Court concerned took cognizance of the matter and framed charges against the accused. The evidence of prosecution completed and statement of the accused under Section 313 of the Code of Criminal Procedure (in short “Cr.P.C.”) was recorded on 23.12.2020 and the case was fixed for defence evidence. On 09.02.2021, the petitioner/accused moved an application before the trial Court praying that medical examination for determining the age of the victim may be done. The Court after hearing both the parties rejected the application on merits vide order 11.02.2021 i.e. the impugned order in this petition.

4. Heard Sri Jyotinjay Verma, learned counsel for the petitioner and Sri Ashwani Kumar, learned Additional Government Advocate appearing on behalf of the State-respondent.

5. Learned counsel for the petitioner/accused submitted that learned Lower Court has not applied its legal mind while dismissing the application moved by the petitioner. The application was dismissed in a cursory manner. Ossification test should be done to determine the age of the victim as victim was major at the time of incident. He further submitted that learned Court below wrongly did not accept the date of birth of victim as mentioned in the Family Register. In support of his contention, he placed reliance upon the following decisions:

(i) State of Madhya Pradesh Versus Munna (2016) 1 Supreme Court Cases 696;

(ii) Ravinder Singh Gorkhi Versus State of U.P. (2006) 5 SCC, page 584;

(iii) Raj Kumar Singh Alias Raju Alias Batya Versus State of Rajasthan (2013) 5 SCC, page 722.

6. Learned A.G.A. appearing on behalf of the State-respondent opposed the submissions made by the learned counsel for the petitioner and contended that the Court below has rightly rejected the application of the petitioner/accused because for the determination of age of the victim or the juvenile, in conflict with law High School Certificate is considered most reliable document, as such, the Court below has rightly relied upon the High School Certificate of the victim for determining her age. He further submitted that the trial is almost at the final stage, this is an attempt to delay the conclusion of trial.

7. Considered the rival submissions and perused the record.

8. Perusal of impugned order shows that the Court below has given reasons for relying upon the High School Certificate of the victim that has been duly proved. Why the Court below did not accept the Family Register entry, the reasons has been given for that too. The Court below has mentioned that Gram Panchayat Officer has accepted in cross-examination that the entry in the Family Register is not authentic for date of birth. The date of birth mentioned in the Family Register is only a possible date. Further more, in the Juvenile Justice (Care and Protection of Children) Act, 2015, the provision is there that the School Certificate will be given priority while deciding the age. Here the Court below has relied upon the High School Certificate, which is considered most authentic document.

9. The case law cited by the learned counsel for the petitioner in the Case of State of Madhya Pradesh Versus Munna (Supra) is of no help to the learned counsel for the petitioner because in that matter, the age of the victim could not be proved with certainty. The petitioner himself has filed his statement recorded under Section 313 Cr.P.C. through a supplementary affidavit. It shows that trial is almost at the final stage. Learned counsel for the petitioner though has not taken it in his petition but submitted that in the statement recorded under Section 313 Cr.P.C, no question has been put by the concerned trial court about the evidence given in regard to the age of the victim and for this contention, he relied upon the decisions of the Hon’ble Apex Court in the cases of Ravinder Singh Gorkhi Versus State of U.P. and Raj Kumar Singh Alias Raju Alias Batya Versus State of Rajasthan (Supra). This contention of the learned counsel for the petitioner too does not carry any force because the perusal of the statement of the accused recorded under Section 313 Cr.P.C. which has been filed through supplementary affidavit, itself shows that in reply to Question No. 8, the accused has mentioned about the age of the victim and has controverted the facts. It also shows that the petitioner/accused is well aware of the factum of age of the victim and the evidence given on the point.

10. In the light of the above discussions, it is clear that this petition has been filed as an attempt to delay the trial and is devoid of any merit. This petition under Section 482 Cr.P.C. deserves dismissal and is accordingly dismissed.

Order Date :- 20.7.2021

Arun

(Saroj Yadav, J.)

 

 

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