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Rajesh vs The State Of Madhya Pradesh on 12 July, 2018

1 MCRC-25926-2018
The High Court Of Madhya Pradesh
MCRC-25926-2018
(RAJESH Vs THE STATE OF MADHYA PRADESH)

2
Jabalpur, Dated : 12-07-2018
Shri Manish Datt, Senior Advocate with Shri P.S. Chouhan for the
applicant.
Shri Neeraj Ashar, P.L. for the respondent/State.

Arguments heard upon first application filed on 03.07.2018 under
Section 439 of Cr.P.C for grant of bail on behalf of applicant Rajesh.

Ca s e diary of Crime No.89/2018 registered at Police Station
Bhaisdehi District Betul(M.P.) under
Sections 363, .376, 506 r/w 34 of
IPC and 3/4 of POCSO Act, also perused.

Learned counsel for the applicant has submitted that the applicant
has not committed such offence. He is an innocent person and has been
falsely implicated in this offence. Chargesheet has been filed. Due to
previous enmity and due to some dispute with Suraj, the applicant has
been implicated by lodging a false report regarding rape. It is also
submitted that no injury has been found on the body of the prosecutrix.
The applicant is in custody since 14.01.2018. Therefore, he may be
released on bail.

On the other side, State has strongly opposed the application and
submitted that the applicant is the main accused of the case who
committed rape with the minor girl. Therefore, bail should not be granted
to the applicant.

In this case, challan has been filed.

For the purpose of proving the date of birth of the prosecutrix, a
mark sheet of year 2014-2015 issued by Government Naveen Middle
School, Beldhana has been obtained which shows the date of birth as
01.08.2004. This mark sheet is related to class-VI. In addition to the
aforesaid document, Adhar Card of the prosecutrix is also available with
the chargesheet which shows the date of birth as 10.08.2004. Anyhow the
month of the birth is August and the year of birth is 2004.

In this regard, the applicant counsel submitted that there is no proof
of the age as per law. He draws the attention of the court towards the
Rule 12 of the “Juvenile Justice(Care and Protection of Children)
Rules, 2007.”

Sub-rule 3 of Rule 12 says:-

2 MCRC-25926-2018
“(3) In every case concerning a child for juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the absence
whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (ii)
of clause (a) above, the medical opinion will be sought from a
duly constituted Medical Board, which will declare the age of
the juvenile or child. In case exact assessment of the age cannot
be done the Court or the Board or, as the case may be the
Committee, for the reasons to be recorded by them may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year.”

As per applicant, the mark sheet submitted by the prosecution is
not come under the purview of Rule 3 because this mark sheet is not
issued by the school first attended by the prosecutrix. He argued that as
per Rule 3(A)(II), the date of birth certificate from the first school
attended can be entertained.

In view of this court, the aforesaid Rule cannot be applicable at
present, because “Juvenile Justice(Care and
Protection of Children)
Act 2015″ came into force with effect from on 15.01.2016. The rules
also made under the aforesaid Act named “The Juvenile Justice(Care
and Protection of Children) Model Rules, 2016” and these rules came
into force with effect from 21.09.2016.
Section 94 of the new Act 2015
provide the procedure for determination of the age.

Sub-rule-2 of Section 94 of New Act says :-

“(2) In case, the Committee or the Board has reasonable grounds
for doubt regarding whether the person brought before it is a child or not,
the Committee or the Board, as the case may be, shall undertake the
process of age determination, by seeking evidence by obtaining-

3 MCRC-25926-2018
(i) the date of birth certificate from the school, or

the matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other latest
medical age determination test conducted on the orders of the
Committee or the Board.

Provided such age determination test conducted on the
order of the Committee of the Board shall be completed within
fifteen days from the date of such order. ”

Difference may be seen between the previous Rule-12(3)(a) and
the
Section 94 (2) of the new Act.

The word “First Attended” not included in Section 94 of the New
Act. This rule says that the ” the date of birth certificate from the school”

Therefore, the certificate submitted by the prosecution is sufficient
to prove the date of birth of the prosecutrix. It means, as per the date of
birth mentioned in the mark sheet i.e. 01.08.2004, the prosecutrix was
under the age of 18 years.

Learned counsel for the applicant draws the attention towards
order dated 23.04.2018 and 21.05.2018 passed in MCRC No.
13578/2018.

It appears from the order dated 23.04.2018 that any prove of the
age was not available in that case. In that condition, the court ordered to
conduct the Ossification test. After the report of ossification test, the bail
was granted by order dated 21.05.2018 because the age of the
prosecutrix was found between 17 to 18 years. But no benefit can be
given to the applicant in this case because sufficient proof of the age has
been produced by the prosecution and this question again may be
considered by the trial court.

The prosecutrix has been examined under Section 164 of Cr.P.C.
on 12.04.2018 by JMFC, Betul. As per her statement, FIR and other
evidence collected, during the trial, it is appeared that on 11.04.2018,
the prosecutrix had gone to Bank for her personal work. When she was
returning to her home at that time at about 03:30 pm on Bhaisdehi Bus
stand, the applicant came on Bolero Jeep and assured her to drop her
home. Then the prosecutrix sit on the jeep but the applicant took her to
4 MCRC-25926-2018
another place and committed rape upon her. There is no any previous
enmity is found between the parties. No any indication is available to
show the false implication of the applicant. He committed the rape upon
the minor girl aged about 14 years.

Counsel argued that no definite opinion given by the doctor
regarding sexual intercourse but in the opinion of this court this fact
alone is not sufficient to hold the prosecution case as a false case. There
is no any ground to disbelieve the prosecutrix.

Therefore, looking to the aforesaid all circumstances and the
position of law, the accused is not entitled to get bail.

Therefore, this application is hereby rejected.

(B. K. SHRIVASTAVA)
JUDGE
VD

Digitally signed by VARSHA
DUBEY
Date: 2018.07.13 09:52:11
+05’30’

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