Sandeep Mehta, J.

Heard learned counsel for the parties and perused the material available on record.

2. By way of the instant misc. petition, the accused petitioner Sharad Chandra @ Sarat Chandra has approached this Court being aggrieved of the order dated 9.9.2015 passed by the learned Sessions Judge, Jodhpur District, Jodhpur in Sessions Case No.152/2013 whereby, the application preferred on his behalf in the trial Court under Section 91 Cr.P.C. for summoning certain documents, was rejected.

3. The petitioner is facing trial in the Court of learned Sessions Judge, Jodhpur District, Jodhpur for the offences under Sections 342, 376(2)(f), 376D, 354A, 370(4), 506, 509/34, 109 and 120-B I.P.C., Sections 23 and 26 of the Juvenile Justice Act and Sections 5(f)(g)/6 and 7/8 of the POCSO Act. The trial is presently proceeding at the stage of cross examination of the last prosecution witness namely, the Investigating Officer PW 43 Smt. Chanchal Mishra.

4. There is a serious contest between the accused and the prosecution regarding the age of the victim. The prosecution has come out with a proposition before the trial Court that the victim was below 18 years of age on the date of occurrence and, therefore, the accused are liable to be tried for the offences under the POCSO Act. On the other hand, the accused claims that the victim was above 18 years of age and thus, the prosecution of the accused under the POCSO Act is unwarranted. The prosecution endeavoured to prove the age of the victim before the trial Court by producing her matriculation school certificate in evidence. As per the date of birth mentioned in the said certificate, the victim was below 18 years of age on the date of occurrence. However, the accused claimed to have laid hands on certain documents including contemporaneous school record as per which, the victim's age as on the date of occurrence comes to be above 18 years.

5. Earlier, the co-accused Asharam @ Ashumal raised this issue before the trial Court and prayed for summoning certain documents from the school where the victim was initially admitted. The said application was rejected by the trial Court upon which, the accused Asharam preferred S.B. Crl. Misc. Petition No.796/2014 before this Court. The said misc. petition too was rejected by this Court by order dated 29.3.2014 upon which the accused approached the Supreme Court by way of Criminal Appeal No.2337/2014. The said appeal was allowed by the Supreme Court in the following terms :-

"There is in our opinion considerable merit in the submission made by Mr. Luthra that the question of the age of the victim is an important question that would fall for determination of the Trial Court. It is true that the Trial Court has already take cognizance of the offences and the trial has commenced but the question whether she was a child as on the date of occurrence remains to be finally determined on a proper appreciation of the evidence adduced at the trial. In the circumstances the appellant's prayer for summoning of the documents in which the date of birth of the victim is given differently from what is alleged by the prosecution was absolutely legitimate and legally permissible. The Trial Court and so also the High Court in our opinion fell in error in denying to the appellant an opportunity to have the documents mentioned above summoned from the concerned quarters to provide an opportunity to the appellant to confront the witness who has signed the said documents insofar as the same recorded the date of birth differently from the one alleged by the prosecution to be her true date of birth.

In the circumstances we have no hesitation in setting aside the order passed by the Trial Court and that passed by the High Court and issuing an appropriate direction for summoning of the said documents. We accordingly allow this appeal, set aside the order passed by the Trial Court and the High Court and direct that the documents mentioned in the body of this order na