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2022 DIGILAW 1008 (MP)

Abhishek Chouhan v. State of Madhya Pradesh

2022-08-10

SUBODH ABHYANKAR

body2022
JUDGMENT 1. Heard. 2. This revision petition has been filed by the petitioner under Cr.A. No. 119/2016 3. assailing order dated 10.07.2021 passed by the Special Judge (POCSO Act, 2012), Ujjain, whereby the learned Judge has rejected the application preferred by the petitioner for treating the petitioner as juvenile. 4. In brief, the facts of the case are that a case of rape has been registered against the petitioner by the prosecutrix on 09.06.2021 alleging rape and admittedly the period of the offence was between October - November, 2018 till 2021. 5. Counsel has submitted that before the trial Court an application was filed by the petitioner regarding his age, claiming himself to be juvenile on the date of incident as his date of birth is 08.11.2001 and he would be 18 years on 08.11.2019. Counsel has submitted that the learned Judge of the trial Court was required to see if on the date when the first of such incident took place i.e. in the month of October - November, 2018 only when the petitioner was less than 18 years old. However, the learned Judge has also taken into consideration the subsequent act of the petitioner. In support of his contention Shri Sharma has also cited a decision in the case of Sri Ganesh Vs. State of Tamil Nadu and another reported as 2017 (1) MPWN 36 . 6. Counsel for the State, on the other hand, has opposed the prayer. 7. Having considered rival submissions, perusal of the documents filed on record as also the aforesaid dictum of Hon'ble Supreme Court in the case of Sri Ganesh (su8ra) the relevant para 11 of which reads as under:- "11. In the present case the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the date of birth of the appellant was 19.10.1991. During the course of its judgment the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. During the course of its judgment the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. Further, if the allegations of the prosecution are that the offence under Section 376 IPC was committed on more than one occasion, in order to see whether the appellant was juvenile or not, it is enough to see if he was juvenile on the date when the last of such incidents had occurred. The trial court was therefore justified in going by the assertions made by the victim in her cross examination and then considering whether the appellant was juvenile on that date or not.' (emphasis supplied) 8. On perusal of the aforesaid decision, it is apparent that what a Court is required to see if the date when the last of such incident which is alleged against the petitioner was committed and admittedly the offence of rape has been alleged even in the year 2021 itself by the prosecutrix as has been observed by the trial Court. Since the petitioner has attained the age of 18 years on 08.11.2019 there appears no error committed by the learned Judge of the trial Court in dismissing the petitioner's application that he should be tried as juvenile, which is in accordance with the aforesaid dictum of the Supreme Court in the case of Sri Ganesh (supra). 9. Resultantly, the revision being devoid of merits, is hereby dismissed.