IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 407 of 2024 (MOHAN YADAV Vs THE STATE OF MADHYA PRADESH AND OTHERS )

Dated : 16-07-2024 Shri Somesh Shukla - Advocate for the appellant.

Shri A.N. Gupta - Government Advocate for the respondent No.1/State.

Heard on I.A. No. 400/2024, which is first application under Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail filed on behalf of appellant-

Mohan Yadav.

This appeal is filed under Section 374(2) of Cr.P.C., 1973 read with Section

148, C.S.T. Act being aggrieved of judgment dated 29/11/2023 passed by the learned Special Judge, POCSO Act, Shahdol (M.P.), in connection with SC ATR No. 52/2022, whereby appellant has been convicted for the offence under Sections 363 and 366(A) of IPC and sentenced to undergo rigorous imprisonment for 7 years and 10 years. He is also convicted under Section 5(L)/6 of POCSO Act, 2012, with RI for Life Imprisonment. Under Sections 3(1)(w)(i) and 3(2)(v) of SC/ST(POA) Act, 1989, he is sentenced to undergo RI for 3 years and life imprisonment respectively with fine of Rs.500/- for each offence respectively with default stipulations.

2. Shri Somesh Shukla, learned counsel for the appellant submits that the age of the prosecutrix is doubtful and therefore, no case under the POSCO Act is made out. Reading from the evidence of her mother (P.W. 2), it is pointed out that in cross-examination in para 6, mother of the prosecutrix admitted that her marriage was performed in the year 1997 and she has three children. She admitted that her daughter is elder child and her son was born in the year 2001. Her youngest daughter was born in the year 2008. Then the prosecutrix's mother said that the prosecutrix is her second child and date of birth of her son is 12/01/2001. 3. Reading from para 8, it is submitted that this witness admitted that the prosecutrix was born after 5 years of her marriage and thus it is submitted that in 2002, the prosecutrix was born, therefore, on the date of incident i.e. 02/03/2022, the prosecutrix will be deemed to be major aged about 21 years.

4. Reliance is placed on the judgment of Supreme Court in the case of State of M.P. Vs. Munna @ Shambhu Nath,[ (2016)1 SCC 696] and placing reliance on this judgment and reading para 8, it is pointed out that the Supreme Court held that " 8. To prove its case, the prosecution produced evidence including school certificate, opinion of the doctor, who conducted medical examination of the prosecutrix, bone ossification test, but the High Court held that none of them could bring home the case of the prosecution. The Prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW 1), where the Signature Not Verified Signed by: SANTOSH prosecutrix studied in her 9th standard. In cross-examination, PW 1 stated that the age of the prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examination-in-chief of PW 8 ( Dr. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but further in her examination-in-chief and cross- examination, she stated that she could not opine about the present intercourse. Other findings of PW 8 are mere opinions and cannot be relied upon completely to establish the guild of the accused.” But Supreme Court noted that the X-ray report is not sufficient to prove the age of the prosecutrix as the author of the report was not examined.

5. Taking these facts into consideration, benefit of doubt was given and the appeal of the State Government was dismissed.

6. Reliance is also placed on the judgment of Co-ordinate Bench of this Court in Criminal Reference No. 6/2022, In Reference (Received from Special Judge, POCSO Act, Khandwa, District Khandwa (Madhya Pradesh) And Anokhilal S/o Seetaram K