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Madhya Pradesh High Court

The State Of Madhya Pradesh Thr vs Mukhtyar Veg on 25 September, 2017

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                                M.Cr.C. No.7837 of 2017
                            (State of M.P. Vs. Mukhtyar)

25.09.2017
     Shri B.K. Sharma, learned Public Prosecutor for
the applicant/State.
     The present petition filed seeking leave to
appeal against the judgment of acquittal of the
respondent who has     been acquitted of the charges

punishable under Sections 363, 366-A, 376(2)(i) of IPC and Section 4 of Protection of Children from Sexual Offences Act.

Learned counsel for the State though admits that the testimony of the prosecutrix was not inculpatory in nature qua the respondent but has assailed the finding recorded by the trial Court in respect of age of the prosecutrix being less than 18 years. It is submitted by placing reliance on the judgment of Apex Court in the Case of "Ashwani Kumar Saxena Vs. State of Madhya Pradesh 2012(9) SCC 750 Para 32" that when the school admission register(Ex.P/6) was available and was duly proved by the prosecution which reflected the date of birth as 05.03.2000, then there was no reason for the trial Court to have disbelieved the said register. He has also relied upon Ex.P/1, which is report card of certain subsequent classes attended by the prosecturix.

True it is that the Apex Court judgment in the case of Ashwani Kumar Saxena (supra) lays down while interpreting the Juvenile Justice Act that in the absence of matriculation or equivalent certificates, record of admission to the primary school(excluding the play school) should be relied upon for ascertaining the age of juvenile and this evidence should be given precedence over the medical evidence.

Perusal of finding rendered by the trial Court specially Para 19 indicates that from the Ossification/Radiological Test report, trial Court found the age of prosecutrix on the date of incident i.e. 30.03.2015 as 19 years and also recorded that this medical opinion is not conclusive proof of evidence.

The trial Court in search of truth scrutinized the testimony of mother of the prosecutrix Rukhsana Begam(PW-3) and found that the mother has deposed that when the prosecutrix was one and half years old, she was shifted to Bhopal and when she turned 15 years, she came back to Mehagaon where the incident took place.

From the above, it appears that the prosecturix was around 15-16 years of age when the incident occurred. However, the said fact is belied by father of the prosecutrix while lodging missing report by disclosing the age of the prosecutrix to be 18 years.

However, considering the law laid down by the Apex Court, it prima facie appears that the trial Court has not evaluated the evidence and wrongly disbelieved the admission register(Ex.P/6). Therefore, State has made out the case for grant of leave to appeal.

In view of the above, leave to appeal is granted. The Registry is directed to register a case as Criminal Appeal and thereafter list it for hearing on admission.

Let bailable warrant in the sum of Rs.25,000/- (Rupees twenty five thousand) be issued against respondent to secure his presence before this Court for a date to be fixed by the Registry.

              (Sheel Nagu)             (Ashok Kumar Joshi)
                 Judge                      Judge
pawan