ORDER

1. Heard.

This revision petition has been filed by the petitioner under section 397 read with section 401 of Cr.P.C assailing order dated 24.1.2022 passed by the First Additional Sessions Judge, Alirajpur, in ST/97/2021 whereby the learned Judge has transferred the case to Juvenile Justice Board, Alirajpur considering the accused as a minor.

2. In brief, the facts of the case are that a case of rape has been registered against the respondent/accused by the prosecutrix on 1.3.2021 and admittedly the period of the offence was between 28.5.2020 till 10.2.2021.

3. Counsel has submitted that against the aforesaid complaint, accused was arrested on 1.3.2021 and thereafter he was released on bail. Thereafter, vide impugned order dated 24.1.2022 learned trial Court directed the matter to be transferred to Juvenile Justice Board noting that the accused's date of birth is 9.7.2002 as per his school scholar register No.218 dated 15.7.2014 certifying him as a minor at the time of crime as the crime first occurred on 28.5.2020. The accused attained majority on 9.7.2020 and incident took place between the period from 28.05.2020 until 10.02.2021. Learned Judge of the trial Court is required to see whether the accused was juvenile on the date when the last of such incidents had occurred, whereas, learned trial Court has considered the date when the first of such incident took place as the petitioner was juvenile, hence transferred the matter to Juvenile Justice Board. In support of his contention counsel has also cited a decision in the case of Sri Ganesh v. State of Tamil Nadu and another reported as 2017 (1) MPWN 36 and prayed that the impugned order be set aside and the matter be committed back to the Sessions Court for further trial.

4. Counsel for the State, on the other hand, has opposed the prayer.

5. 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 (supra) 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. 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 w a s 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)

The aforesaid dictum has also been endorsed by this Court in recent order dated 10.8.2022 passed in Cr.R. No.1646/2021.

6. In view of the aforesaid decisions, 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 by the prosecutrix and the petitioner has attained the age of 18 years on 9.7.2020 itself, therefore in accordance with the aforesaid dictum of the Supreme Court in the case of Sri Ganesh (supra) the impugned order of trial Court deserves to be and is accordingly set aside. The matter is remitted back to the concerned Sessions Court, Alirajpur for further trial.

7. Resultantly, the revision stands allowed and disposed of.