Madhya Pradesh High Court
Raghvendra Narwariya vs The State Of Madhya Pradesh on 23 April, 2019
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.8930/2019
Raghvendra Narvariya Vs. State of M.P. and another
Gwalior, Dated :23/04/2019
Shri Arvind Kumar Dwivedi, Advocate for applicant.
Shri Sanjay Bahirani, Public Prosecutor for respondent
no.1/State.
Shri Gaurav Mishra, Advocate for respondent no.2. This application under Section 482 of Cr.P.C. has been filed challenging the order dated 19/2/2019 passed by Tenth Additional Sessions Judge, Gwalior in S.T. No.97/2017, by which the application filed by the applicant under Section 91 of Cr.P.C. has been rejected.
2. The necessary facts for disposal of the present application in short are that the applicant is facing trial for offence under Section 396 of IPC as well as under the POCSO, Act. It is the case of the applicant that the date of birth of the prosecutrix is 1/2/1997, whereas according to the prosecution, her date of birth is 1/7/2002. It is the stand of the applicant that the prosecutrix was major on the date of commission of offence and accordingly, no offence under Sections 5 A (1) (IV), 6 of the POCSO, Act is made out.
3. The prosecutrix was examined and cross examined and in cross examination the applicant had confronted the prosecutrix with the photocopy of the mark-sheet of High School Certificate Examination 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.8930/2019 Raghvendra Narvariya Vs. State of M.P. and another and she had admitted that the said mark-sheet contains her photograph and in the said mark-sheet her date of birth has been mentioned as 1/2/1997, therefore, it is clear that the prosecurtrix has not denied the photocopy of the mark-sheet produced by the applicant. Thus, it is clear that the applicant has raised a debatable question that whether the date of birth of the prosecutrix is 1/7/2002 or 1/2/1997? By filing an application under Section 91 of Cr.P.C. the applicant has prayed that the admission register, mark-sheets of the prosecutrix of Class 5 th, 8th and 10th may be summoned from the Government Higher Secondary School, Behat, Morar, District Gwalior. The trial court has rejected the application on the ground that the applicant has already given suggestions to the witnesses which have been admitted by them and the applicant at the stage of his defence can produce the evidence in his favour and at that time he can also file an application under Section 91 of Cr.P.C., but at this stage his application under Section 91 of Cr.P.C. cannot be entertained, as it has no relevance because the witnesses have already been cross examined.
4. It is submitted by the counsel for the applicant that in fact earlier also the applicant had filed an application under Section 91 of Cr.P.C., but the same was rejected by order dated 19/4/2018 by holding that the initial burden is on the prosecution to prove that the 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.8930/2019 Raghvendra Narvariya Vs. State of M.P. and another prosecutrix is minor and the cross examination of the witnesses is yet to take place. It is submitted that after the cross examination of the witnesses, again the application has been rejected, whereas these documents are relevant for just decision of the case.
5. Per contra, it is submitted by the counsel for the State that the application has been filed for delaying the trial proceedings and it has no relevance.
6. The counsel for the complainant also vehemently objected the prayer made by the applicant, but he could not disown the admissions made by the prosecutrix in paragraph 10 of her cross examination about the photocopy of the mark-sheet produced by the applicant in his defence.
7. Heard learned counsel for the parties.
8. According to the prosecution case, the date of birth of the prosecutrix is 1/7/2002, whereas according to the applicant, her date of birth is 1/2/1997. The prosecutrix has also admitted that the photocopy of the mark-sheet which was produced by the applicant contains her photograph and according to the said mark-sheet, her date of birth is 1/2/1997. Thus, a debatable question has been raised by the applicant raising serious doubt on the correctness of the date of birth as claimed by the prosecution. Under these circumstances, this Court is of the considered opinion that the trial court has 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.8930/2019 Raghvendra Narvariya Vs. State of M.P. and another committed a material illegality by rejecting the application filed under Section 91 of Cr.P.C. Accordingly, the order dated 19/2/2019 passed by Tenth Additional Sessions Judge, Gwalior in S.T. No.97/2017 is hereby set aside. The application filed by the applicant under Section 91 of Cr.P.C. is hereby allowed. The trial court is directed to summon the documents from the concerning school, as sought by the applicant in the application under Section 91 of Cr.P.C.
9. With aforesaid observations and directions, this application is finally disposed of.
(G.S. Ahluwalia)
Arun* Judge
ARUN KUMAR MISHRA
2019.04.24 16:54:45 +05'30'