The court emphasized the necessity of a proper enquiry into juvenility, allowing the accused to present evidence and examine the Medical Board, rather than relying solely on medical opinion.

JUDGMENT :

1) By this common order, the above numbered two petitions, vide which the petitioner has challenged orders dated 23.07.2022, 10.08.2022, 16.05.2024 and 24.07.2024 passed by learned Special Judge POCSO Cases, Srinagar, are proposed to be disposed of.

2) It appears that on 09.11.2021, father of the prosecutrix lodged a report with the police alleging therein that on 05.11.2021, the prosecutrix did not return to home from her college. On the basis of this report, the police proceeded to launch a search for the prosecutrix whereafter on 14.11.2021 she was recovered from Chadoora. It was found that she had been kidnapped by the petitioner on 05.11.2021, whereafter she was subjected to forcible sexual intercourse. The police registered FIR No.346/2021 for offences under Section 363 and 376 IPC. After conducting investigation of the case, the police found that the age of the victim was less than 18 years and, as such, offences under Section 363, 376 IPC read with Section (cid:190) of POCSO Act were found established against the petitioner and the challan was laid before the Special Court.

3) It seems that the petitioner/accused made an application through his mother before the learned Special Court under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “the Act of 2015”), in which he projected the plea of juvenility. It was stated in the application that the petitioner does not have any documentary proof with regard to his age and, as such, he may be subjected to ossification test for determination of his age. The said application was considered by the trial court and vide order dated 17.03.2022, Chief Medical Officer, Srinagar, was directed to constitute a Medical Board to ascertain age of the petitioner after conducting his ossification test. Upon conducting ossification test of the petitioner, the Medical Board submitted its report before the learned trial court. As per the said report, the age of the petitioner has been assessed as 19 plus years. On the basis of the report of the Medical Board, the learned trial court in terms of impugned order dated 23.07.2022 concluded that age of the petitioner is more than 18 years and, as such, he does not qualify to be a ‘juvenile’ within the meaning of the Act of 2015. Accordingly, after framing charges under Section 363, 376 IPC read with Section 6 and 5 (l) of the POCSO Act, the case was set down for prosecution evidence.

4) It seems that after the prosecution led its evidence, the petitioner filed an application before the trial court on 22.02.2024 seeking leave of the court to enter upon defence under Section 233 of Cr.P.C. The said application was rejected by the learned trial court in terms of order dated 28.02.2024. The said order came to be challenged by the petitioner before this Court by way of criminal revision petition bearing Crl. R No.10/2024. The said revision petition was allowed in terms of order dated 29.04.2024 and a direction was issued to the trial court to proceed further in the matter in accordance with law.

5) It appears that pursuant to the aforesaid order of this Court, the petitioner, through his counsel, made a submission before the trial court that the Court may only summon the witnesses for whom he has sought assistance of the court and that he does not wish to produce other witnesses. The learned trial court, in terms of order dated 16.05.2024, directed issuance of summons to BMO/MO SDH, Chadoora, along with record pertaining to the victim. However, the learned trial court asked the counsel for the petitioner to argue on the point as to whether report of the Medical Board, which stands accepted by the said Court, can be challenged by summoning the witnesses relating to juvenility of the petitioner. This order is also under challenge before this Court.

6) On 24.07.2024, another order came to be passed by the learned trial court, whereby the evidence of the defence has been closed and the case has b