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. 52850 of 2021 Between:-

The State of Madhya Pradesh Station House Officer Through P.S. Sorwa District Alirajpur (Madhya Pradesh)

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

And Dinesh @ Dinu Bhil S/O Doongarsingh @ Doongariya Bhil Aged About 20 Years Gram Bokadiya, Patel Faliya District Alirajpur (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 Special Judge, Protection of Children from Sexual Offences Act, District Alirajpur on 14.07.2021 in Special Sessions Trial No.34/2020 whereby, the respondent has been acquitted from charges framed under Sections 363/34, 366/34 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 in the intervening night of 10- 11.03.2020, the respondent along with delinquent juvenile kidnapped/abducted the minor prosecutrix, aged about 16 years 11 months and thereafter on the false pretext of marriage took her to Halwad, District Surendra Nagar, Gujarat and kept her there for about four months and committed sexual intercourse with her repeatedly.

3. Learned Trial Court has framed charges against the respondent under Sections 363/34, 366/34 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 basis out of number of options postulated therein. The Apex Court in para-22 has observed as under:-

22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been