Madhya Pradesh High Court
Ajay Kha @ Ajju vs The State Of Madhya Pradesh on 2 December, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2 nd OF DECEMBER, 2022
CRIMINAL APPEAL No. 10920 of 2022
BETWEEN:-
AJAY KHA @ AJJU S/O SHRI BALLA KHA, AGED 18
YEARS, OCCUPATION: STUDENT/STUDY R/O LABOUR
PANJINAGAR SHABDPRATAP ASHRAM, BAHODAPUR
GWALIOR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI S.S. TOMAR-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAHODAPUR DISTRICT GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI C.P. SINGH - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
None for the respondent No. 2/complainant.
It is submitted by the counsel for the State that the complainant has been informed about the pendency of this appeal as required under Section 15-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'Act').
Case diary is available.
This fifth criminal appeal has been filed under Section 14-A (2) of the Act against the order dated 24.03.2021 passed by Special Judge, (Atrocities) 2 Gwalior, rejecting the bail application. The fourth criminal appeal was dismissed by order dated 05.09.2022 passed in CRA No.6321/2022.
The appellant has been arrested on 22.9.2020 in connection with Crime No.595/2020 registered by Police Station Bahodapur, District Gwalior for offence punishable under Sections 363, 376 of IPC, under Section 3/4 of the POCSO Act and under Section 3(1)(w)(ii) and 3 (2) (v) of the Act.
It is submitted by counsel for appellant that although the previous appeals filed by appellant for grant of bail have already been dismissed on merits but the appellant wants that present appeal should also be decided on merits by passing a detailed order.
Accordingly, counsel for appellant was informed that inviting a detailed order at the stage of bail may not be in the interest of appellant because any observation made by this Court in this order may prejudice the mind of the Trial Court.
However, the counsel for appellant submitted that appellant is ready to face the consequences of such observations.
It is submitted by counsel for appellant that prosecutrix is aged about 16 years and appellant is aged about 18 years and both were known to each other since their childhood and were studying in the same school and thus if a physical relationship took place with the prosecutrix then it would not be an offence under Section 376 of IPC or an offence under Section 3/4 of POCSO Act.
Accordingly, the counsel for appellant was requested to elaborate the submission in the light of the fact that the prosecturix is aged about 16 years and whether the friendship will give any right to the appellant to commit rape on the prosecutrix.
3It was fairly conceded by counsel for appellant that friendship with a girl would not give any license to appellant to commit rape on her.
It is further submitted by counsel for appellant that since the appellant and prosecutrix were known to each other, therefore, it is clear that the prosecutrix is a consenting party.
Undisputedly, the prosecutrix is aged about 16 years and in view of Section 375 of IPC, the consent of a girl below the age of 18 years is immaterial.
At this stage, it is submitted by counsel for State that the prosecutrix has been examined and she has supported the prosecution case and apart from that, the DNA test report also establishes the presence of DNA profile of appellant in the incriminating articles of the prosecutrix.
Under the facts and circumstances of the case, this Court is of the considered opinion that no case is made out for taking a contrary view in the matter.
The appeal ails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Aman AMAN TIWARI 2022.12.03 11:26:31 +05'30'