Madhya Pradesh High Court
Vinod Kumar Jatav vs The State Of Madhya Pradesh Thr. on 1 October, 2015
1 CRR.843/2015
(Vinod Kumar Jatav Vs. State of M.P.)
01.10.2015
Shri Jitendra Kumar Jain, Advocate, for the petitioner.
Shri Rajendra Singh Yadav, Public Prosecutor, for the
respondent/State.
Heard.
1. This revision petition under Section 397/401 of Cr.P.C. is directed against order dated 10.09.2015 passed by 8 th Additional Sessions Judge, Gwalior, in S.T.No.102/15 whereby the learned ASJ has disallowed the application under Section 45 of the Evidence Act.
2. Brief facts just necessary for disposal of this revision are: On the report of father of the minor prosecutrix Crime No.44/2015 has been registered at Police Station Thatipur under Sections 363, 366 of IPC against the present petitioner. After investigation, charge-sheet has been filed which has given rise to the Sessions Trial No.102/15.
3. The accused/petitioner filed an application under Section 45 of the Evidence Act and requested for ossification test to determine the age of the prosecutrix. The accused petitioner claimed that the prosecutrix has narrated her age to be 17 years and her mark-sheet of Class VIII was enclosed. However, no birth certificate or discharge ticket of the hospital regarding her birth has been filed. That the date of birth 2 CRR.843/2015 mentioned in the school records has been written estimatedly. Therefore, the accused/petitioner requested for the ossification test of the prosecutrix which test was not done at the time of investigation. The said application has been disallowed by the learned Trial Court on the ground that, (i) there is academic certificate (ii) the parents of the prosecutrix were cross examined at length by the defence, importance of ossification test has no role, as the prosecution has relied upon the documents already submitted. The defence is at liberty to deny those documents. Therefore, at the stage of defence evidence the present application is not maintainable.
4. Learned counsel for the petitioner submitted that previously this Court during her deposition, the prosecutrix has clearly stated that her date of birth is 18 th October, 1995. In her cross examination at paragraph 4, she has said that the name of her mother is Rammurti. Whereas, in certificate Exhibit D-1, the name of her mother is shown as Jyoti. Phoop Singh (PW-2), the father of the prosecutrix has also stated that the Exhibit D-1 is the mark-sheet of the year 2012. The photograph of the prosecutrix, she has narrated that her birth is 16.09.2014. In the statement of Rammurti (PW-3), the mother of the prosecutrix, she has narrated that she married 25 years back. After 3-4 years of her marriage she gave birth to the prosecutrix.
5. Learned counsel for the petitioner also tried to 3 CRR.843/2015 demonstrate that the certificate produced of "New Central Academic School, Sarvodaya Nagar, Thatipur" show over writing and it is also claimed that the date of birth of the prosecutrix as mentioned in the record as 18.10.1998 is incorrect. There has been some manipulation. Prima facie looking on the certificate over-writing is observed clearly. The petitioner/accused further claimed that at this defence stage if the petitioner does not able to satisfy the Court by cogent and relevant evidence, the petitioner would be deprived of his rights. In support of the contention, the petitioner relied on Nandlal Vs. State of Maharashtra reported at 2008 (1) MPLJ 84 in which coordinate Bench of this Court has held that, "(a) Criminal Procedure Code(2 of 1974), S. 233 and Evidence Act, S.45--Criminal trial--Request of accused to summon experts of their choice to rebut evidence of experts of the prosecution cannot be turned down merely on the ground that accused have cross-examined them."
6. Learned Public Prosecutor opposed the application stating that the learned Trial Court has rightly disallowed the application under Section 45 of the Evidence Act. The date of birth of the prosecutrix is very clear from the birth certificate, therefore, further providing opportunity to ossification test is not at all required.
7. In Devendra Singh Vs. State of M.P. 1998 Cr.L.J 4 CRR.843/2015 3654, this Court has opined that, "An admission in the School register cannot have the finality for the purpose of determination of age as there is tendency of the parents to under estimate the age for some time to enhance the age."
8. The procedure for determination of age of an accused claimed to be a juvenile, the procedure clearly being adopted is to first consider the birth certificate issued by a Corporation or Municipal authority or birth certificate from a School First attended or Matriculation or Equivalent certificate if available. When the documents which are relied upon found to be forged or fake, in that case, the Court has option to go for an opinion of Medical Board through ossification test.
9. Our justice delivery system is a system of Courts presided over by Judges and aided by lawyers in the discharge of their functions. When justice, is denied, expectation may be darken into depression and in turn endanger, dispair, reliant and anarchy.
10. In the present context, from the above legal preposition it is settled that, the accused has a right to adduce evidence in his defence and to summon witnesses. The only ground on which his witnesses can be turned down is that the application for summoning the defence witness is made for the purpose of vexation, delay or for defeating the ends of justice. In the 5 CRR.843/2015 present context, since the accused petitioner wanted to examine experts for establishing his defence and rebut the evidence of the prosecution his request of summoning the ossification test and summoning the radiologist cannot be turned down merely on the ground that the prosecution has established its case by examining the witnesses and that accused cross-examined them.
11. On due consideration of all the facts and circumstances appearing in the case and the legal preposition discussed above, this Court is of the opinion that, this revision deserves to be allowed. Accordingly, the revision is allowed. Impugned order rejecting the prayer of petitioner to conduct ossification test of the prosecution for determining her age is set aside. The Trial Court is directed to allow the petitioner to conduct ossification test at the expenses of the petitioner.
(S.K. Palo)
mani Judge