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Rajasthan High Court · body

2021 DIGILAW 2212 (RAJ)

Lala Ram v. State of Rajasthan

2021-11-24

RAMESHWAR VYAS

body2021
ORDER : 1. The instant criminal revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioner assailing the Offences Act, 2012 order dated 10.10.2019 passed by Special Judge, Protection of Children from Sexual Cases, Sirohi in Special POCSO Case No. 11/2019 (State of Rajasthan vs. Lalaram), whereby the application under Section 34 of Protection of Children from Sexual Offences Act, 2012 filed by the petitioner to treat him as child and release him, was dismissed. 2. Brief facts of the case in short are that on 11.12.2018, an F.I.R. was lodged by father of the victim against the petitioner with the allegation that he raped his minor daughter. The victim delivered fetus of eight months on 12.12.2018. The accused-petitioner was arrested on 25.12.2018. After investigation, challan was filed by the police against the petitioner. During trial, the petitioner filed an application on 22.04.2019, wherein it was stated that he had studied in the school. In the school record, his date of birth was entered as 22.06.2001. The incident was alleged to be taken place before eight months from lodging the report. Since the police did not inquire about age of the accused-petitioner during the investigation, though, he being less than 18 years of age, was juvenile at the time of incident, hence, the prayer was made to determine age of the petitioner and release him from custody. 3. At the request of the petitioner, enquiry was made by the Special Judge, POCSO Cases, Sirohi. During enquiry, statements of Amara Ram, father of the petitioner and Rahul Meena, Headmaster of the school, in which he was studying, were recorded. Being not convinced with the statements and the school record, the trial court ordered for conducting medical examination of the petitioner. In pursuance whereof, the petitioner was examined by the Medical Board on 25.09.2019. As per report of medical examination, radiological age of the petitioner was found between 20-22 years. After completion of enquiry, the trial court by passing the order impugned found that the petitioner was not child. Relying upon the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 AIR 1796, it was observed by the trial court that age mentioned in the school record was not substantiated by statement of father of the child. Relying upon the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 AIR 1796, it was observed by the trial court that age mentioned in the school record was not substantiated by statement of father of the child. Placing reliance on the opinion of the Medical Board, the child was not found juvenile at the time of incident. Aggrieved with impugned order passed by the trial court, instant revision petition has been preferred by the petitioner. 4. Heard learned counsel for the parties and perused the material on record as well as order impugned. 5. Learned counsel for the petitioner has submitted that the trial court grossly erred in ordering medical examination of the accused and placing reliance on it, in spite of availability of school record, which is in favour of the petitioner. The medical opinion is not conclusive proof of the age. He has further submitted that the incident took place more than 8 months before lodging the F.I.R. on 11.12.2018 and the medical examination of the petitioner was conducted on 25.09.2019. It means that the incident took place around one and a half years before the date of medical examination of the petitioner. In the medical examination report, radiological age of the petitioner was found between 20-22 years. He has further submitted that on the basis of medical report, it cannot be concluded that the petitioner had attained the age of 18 years at the time of incident. As per legal proposition of law, there can be a variation of 2-3 years of age from radiological age. Hence, the trial court was not correct in arriving at the conclusion that the petitioner was not a child on the relevant date. 6. Learned counsel for the petitioner has relied upon the judgments of the Hon'ble Apex Court in the case of Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 as well as Birad Mal Singhvi vs. Anand Purohit, 1988 AIR 1796. 7. On the other hand, learned Public Prosecutor while supporting the order impugned passed by the trial court, has submitted that age of the petitioner mentioned in the school certificate could not be substantiated by oral evidence. The trial court rightly passed the order impugned, which did not warrant any interference. 8. 7. On the other hand, learned Public Prosecutor while supporting the order impugned passed by the trial court, has submitted that age of the petitioner mentioned in the school certificate could not be substantiated by oral evidence. The trial court rightly passed the order impugned, which did not warrant any interference. 8. This Court is in agreement with the arguments advanced by learned counsel for the petitioner that on the basis of medical report, it cannot be with certainty assumed that the petitioner had attained age of 18 years at the time of committing the offence. There is no dispute regarding legal proposition that relevant date, for the purpose of trial of a child in conflict with law, is the age at the time of commission of offence. As stated earlier, in the present case, incident took place more than one and a half years before the date of conducting medical examination of the petitioner. The juvenility of the child is further corroborated from school record of the petitioner wherein his date of birth has been mentioned as 22.06.2001. In the present case, this Court need not to deal with the question of powers of the trial court in ordering medical examination of the petitioner to be conducted by the Medical Board. Suffice it to say that the medical report is not conclusive proof of the age and it has to be considered along with other evidence, which in the present case is also in favour of the petitioner. Since the petitioner is accused, hence, as per settled legal proposition of law laid down by the Hon'ble Apex Court, while appreciating the evidence adduced on behalf of the accused in support of the plea that he is juvenile, when two views are possible on the point of juvenility of the accused, the Court should take the view, which is in favour of the accused. 9. In the present case also, keeping in mind the above principle of law, on the basis of medical opinion, the petitioner may or may not be juvenile, hence, this Court finds that he should be treated juvenile at the time of occurrence especially looking to the school record in favour of the petitioner. The trial court was, thus, not correct in arriving at the conclusion that the petitioner was not a juvenile. 10. Resultantly, the present criminal revision petition is allowed. The trial court was, thus, not correct in arriving at the conclusion that the petitioner was not a juvenile. 10. Resultantly, the present criminal revision petition is allowed. The impugned order dated 10.10.2019 passed by the trial court is set aside. The trial court is directed to send the petitioner before the competent Juvenile Justice Board for dealing the matter as per provisions of the Juvenile Justice Act.