IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH th ON THE 4 OF FEBRUARY, 2022 MISC. CRIMINAL CASE No. 55411 of 2021 Between:-

The State of Madhya Pradesh Station House Officer Through P.S. Mahakaal District Ujjain (Madhya Pradesh)

.....PETITIONER (By Shri Amit Singh Sisodia, Government Advocate)

And Lakhan S/O Dharasingh Aged About 20 Years, Banskhedi Aarakshi Kendra Narwar District Ujjain (Madhya Pradesh)

.....RESPONDENT (None for respondent)

(Heard through Video Conferencing)

This petition coming on for orders this day, Hon'ble Shri Justice Satyendra Kumar Singh passed the following:

ORDER This petition seeking leave to appeal has been filed by the petitioner/State under Section 378(3) of Cr.P.C. against the judgement of acquittal pronounced by the Court of Special Judge, Protection of Children from Sexual Offences Act, District Ujjain on 30.07.2021 passed in Sessions Trial No.330/2019 whereby, the respondent has been acquitted from charges framed under Sections 363, 366 and 376(2)(n) of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) read with Sections 5(L)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”).

2. Prosecution case, in brief is that on 30.10.2018 at about 8.30 AM, prosecutrix, who was studying in Class 10th and staying with her maternal uncle went to attend coaching class and did not return back. Thereafter, a missing person's report was lodged at police station Mahakaal by mother and uncle of the prosecutrix. Prosecutrix was searched for and it has been found that prosecutrix used to talk with the respondent over mobile phone frequently and it was assumed that the respondent has kidnapped/abducted the minor prosecutrix, aged about 16 years and thereafter took her first to Indore and then to Mahsawad, Maharashtra and solemnised marriage with her in a temple and kept her in a hut over there for about nine months and committed sexual intercourse with her repeatedly.

3. Learned Trial Court has framed charges against the respondent under Sections 363, 366 and 376(2)(n) of the IPC read with Sections 5(L)/6 of the POCSO Act.

4. The respondent abjured his guilt and pleaded false implication. Learned Trial Court, while passing the impugned judgement of acquittal of the respondent, thoroughly discussed the evidence available on record and arrived at the conclusion that the prosecution has failed to establish that at the time of incident, prosecutrix was minor, below 18 years of age. Prosecutrix was found to be major at the time of incident. It has been observed that prosecutrix and the respondent were well known to each other and from the evidence available on record, it is apparent that she was a consenting party.

5. Being aggrieved by the aforesaid judgement of acquittal, the State has preferred this petition seeking leave to appeal on the ground that the findings recorded by the Trial Court to acquit the respondent are illegal, arbitrary and contrary to law, as the material evidence adduced by the prosecution has not been properly appreciated. It is further submitted that at the time of incident, prosecutrix was minor and DNA report supports the prosecution story and therefore, learned Trial Court has wrongly acquitted the respondent, therefore, this petition may be allowed and leave to appeal may be granted.

6. We have heard learned Government Advocate at length and perused the record along with the impugned judgement. The first question for consideration is whether at the time of commission of offence, the prosecutrix was major?

7. The Apex Court in the case of Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263 has discussed the provision of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short "the Rules of 2007"). Rule 12 (3) gives list of documents and provides that the age of the child can be ascertained by adopting first available