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2017 DIGILAW 1888 (RAJ)

Rakesh Kumar v. State Of Rajasthan

2017-08-23

PANKAJ BHANDARI

body2017
JUDGMENT Pankaj Bhandari, J. —Petitioner has preferred this revision petitions aggrieved by order dated 18.04.2017 passed by Additional Sessions Judge No. 2, Sikar (Raj.) and Special Judge, Protection of Children from Sexual offences Act, Sikar (Raj.) whereby, charges have been framed against the petitioner for offences under Sections 452, 363, 365 and 366 of I.P.C. and section 5 (1) 6 of the Protection of Children from Sexual Offences Act, 2012 and alternative Section 376 (2) (N) of I.P.C. Section 3 (I) (XII), 3 (2) (V) of SC & ST (Prevention of Atrocities) Act. 2. It is contended by counsel for the petitioner that framing of charges under the Protection of Children from Sexual Offences Act is perverse as the prosecutrix was a major on the date of commission of the offence. 3. It is contended that the school certificate which was produced by the prosecution mentioned the date of birth of the prosecutrix as 20.07.1994, the date of the incident being 15.04.2015, the prosecutrix was 19 years and 9 months old on the date of the occurrence. It is also contended that the Court below has erred in relying on the medical report as the Court was bound to consider the age in accordance with Rule 12 of the Juvenile Justice (Care & Protection of Children from sexual offences) Rules 2015. 4. Leaned Public Prosecutor has opposed the revision petition. His contention is that the charge is in the alternative and if during trial, it is revealed that the prosecutrix was major, the petitioner would be acquitted of the charge under the POCSO Act. 5. Counsel for the complainant has objected to the revision petition. It is contended that the date of birth mentioned in the school certificate is prior to the date of marriage. 6. I have considered the contentions. 7. 5. Counsel for the complainant has objected to the revision petition. It is contended that the date of birth mentioned in the school certificate is prior to the date of marriage. 6. I have considered the contentions. 7. Rule 12 of the Juvenile Justice (Care & Protection of Children from sexual offences) Rules 2007 provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or as the case may be, by the committee by seeking evidence by obtaining - (a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 8. Sub-clause (3) of Rule 12 is applicable for determining the age of a child or juvenile in conflict with law. The age of the prosecutrix is also required to be determined in accordance with Rule 12 of the Rules as held by the Apex Court in " Mahadeo v. State of Maharashtra and Anr." (2013) 14 Supreme Court Cases 637 and " State of Madhya Pradesh v. Anoop Singh" (2015) 7 Supreme Court Cases 773 . 9. The document pertaining to date of birth was produced by the prosecution, itself wherein, the date of birth was mentioned as 20.07.1994, the prosecutrix was thus above 18 years of age on the date of the occurrence. 10. The Court was not required to call for the report of a Medical Board since Rule 12 specifically provides that the first preference should be given to the Matriculation Certificate and in absence, date of birth certificate from the school first attended and in absence of both to the birth certificate given by a corporation or a municipal authority or a Panchayat, (b) of Rule 12 specifies that only in absence of above three documents, medical opinion should be sought by the Board. Meaning thereby that when either of these documents are available medical opinion is not to be sought from the Medical Board. 11. Framing of charge under the POCSO Act on the basis of the report of the Medical Board is thus a perversity committed by the Court below since the prosecutrix, as per certificate issued by the school which she first attended, was a major. 12. The revision petition therefore, deserves to be partly allowed. The revision petition is, accordingly, partly allowed. 13. The impugned order to the extent of framing charge under the POCSO Act is quashed and set aside. 14. Stay application also stands disposed of.