Madhya Pradesh High Court
Ajay Ahirwar vs The State Of Madhya Pradesh on 11 November, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 45406 of 2022
BETWEEN:-
AJAY AHIRWAR S/O RAMKISHAN AHIRWAR,
AGED ABOUT 19 YEARS, OCCUPATION:
PRIVATE JOB VILLAGE LIDHORA TAL POLICE
STATION JATARA DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI HIMANSHU TIWARI, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION JATARA TIKAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ATUL DWIVEDI, PANEL LAWYER FOR STATE)
(BY MS. BHAVNA TRIPATHI, COUNSEL FOR OBJECTOR)
This third bail application coming on for admission this day, the court
passed the following:
ORDER
This is third bail application under Section 439 Cr.P.C. Case No.397/2021 is registered at Police Station Jatara, District Tikamgarh for offence under Section 363, 366, 376(2)(n) of IPC and Section 5(1)/6 of POCSO Act. Applicant is in custody since 19.11.2021.
It is submitted that date of birth of the prosecutrix is disputed. Reading evidence of Savita Rastogi, teacher who deposed that she is Head Master in the Signature Not Verified concerned school, deposed that prosecutrix had taken admission in Class-2, SAN Digitally signed by MOHD TABISH KHAN Date: 2022.11.11 19:07:46 IST she had not taken admission in Class-I, admission was given by the class 2 teacher, no mark-sheet or transfer certificate was produced by the prosecutrix, she had not given admission to the prosecutrix, date of birth was mentioned by the class teacher of Class-2. She also admitted that the age which was narrated by the mother of the prosecutrix at the time of the admission was recorded by the class teacher.
Reading this evidence it is submitted that there is dispute in regard to date of birth. Thereafter, reading evidence of the prosecutrix it is submitted that she has turned hostile, she has not supported prosecution case, she has admitted in her cross-examination that no incident had taken place with her. She had never visited the temple, she had left her parents house being aggrieved of their conduct and had visited her 'Mausi' house. She never visited Gazipur Shahdara in Delhi nor she studied there. She had given statements under Section 164 Cr.P.C. under police pressure. She admitted that she is married.
Reading these statements it is submitted that it's a fit case to extend benefit of bail and prosecutrix herself admits that no incident had taken place with her.
Ms. Bhavna Tripathi, learned counsel for the objector supports the prayer for grant of bail and submits that she has instructions to say that victim has no objection if bail is extended in favour of the applicant.
Shri Atul Dwivedi, learned Panel Lawyer for the State, in his turn, reading DNA report dated 30.05.2022 issued by Dr. Kamlesh Ketholiya, Scientific Officer and Assistant Chemical Examiner, Regional Forensic Science Laboratory, Bhopal deposed that the Y-Chromosome obtained from source Penty (Ex.A), Vaginal Slide (Ex.-B) matches with the Y-DNA Profile of the Signature Not Verified SAN accused Ajay Ahirwar (Ex.-D). Reading this report it is submitted that the Digitally signed by MOHD TABISH KHAN Date: 2022.11.11 19:07:46 IST prosecutrix is telling lies before the Court. When DNA report both in regard to 3 her undergarment and Vaginal Slide is positive qua that of the present applicant, no indulgence is required.
Another interesting facet of the argument is that Ms. Bhavna Tripathi admits that prosecutrix had directly taken admission in Class-2 and she never studied in Class-1 in any school.
In view of such admission made by Ms. Bhavna Tripathi Class-2 becomes the first school attended by the prosecutrix, and, therefore, the date of birth mentioned in that record is sacrosanct unless controverted by through some cogent documentary evidence. In absence of any such documentary evidence, it cannot be said at the instance of learned counsel for the applicant that prosecutrix was major on the date of the incident. Thus, that cannot be any valid consent of the minor and in view of such facts this third bail application deserves to be dismissed and is dismissed.
(VIVEK AGARWAL) JUDGE Tabish Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.11.11 19:07:46 IST