IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA rd ON THE 3 OF AUGUST, 2022 CRIMINAL REVISION No. 2232 of 2022 Between:-

ASHISH DOHARE S/O MAHESH PRASHAD DOHARE, AGED 20 YEARS, OCCUPATION- NOTHING, R/O MOHALLA ASHOKNAGAR MOTH THANA MOTH DISTRICT JHANSI (UTTAR PRADESH)

….....APPLICANT (BY MS. ANKITA SHARMA – ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION KOTWALI DISTRICT DATIA (MADHYA PRADESH)

….....RESPONDENT (BY SHRI NAVAL KISHOR GUPTA – PUBLIC PROSECUTOR)

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This Criminal Revision coming on for hearing this day, the Court passed the following:

ORDER

This Criminal Revision under Section 397 (1) read with Section

401 of Cr.P.C has been filed against the order dated 30.05.2022 passed by Special Judge, the Protection of Children from Sexual Offences Act, Datia in Special Sessions Trial No.10/2021 by which the application made by the applicant to examine Dr. S.K. Khangar posted in district hospital Datia as his defence witness has been rejected.

It is the case of applicant that he is facing trial for offence under Sections 363, 366, 376(2)(n) of IPC and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity, 'POCSO Act)'. It is the case of applicant that according to the prosecution case, the date of birth of prosecutrix is 30.10.2003 and thus the prosecutrix was minor below the age of 18 years at the time of incident whereas defence of applicant is that she was above the age of 18 years at the time of incident. It is submitted that prosecutrix was subjected to ossification test and it was found that she was above the age of 18 years and the ossification test report has already been exhibited as Exhibit D-5. It is submitted that since ossification test was conducted by Dr. S.K. Khangar, therefore, the applicant wanted to examine him as a defence witness to show that the prosecutrix was above the age of 18 years on the date of incident, and thus, it is prayed that the Trial Court has wrongly rejected the application of applicant by holding that the applicant is making an effort to delay the proceedings.

Per contra, the revision is vehemently opposed by counsel for State. It is submitted that Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity, Act, 2015), governs the field and the age of victim can also be assessed as per the guidelines issued under the Act, 2015 as held by the Supreme Court in the case of Jarnail Singh Vs State of Haryana reported in (2013) 7 SCC 263.

Heard learned counsel for the parties.

Section 94 of Juvenile Justice (Care and Protection of Children)

Act, 2015 reads as under :

“94. Presumption and determination of age.-

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii)

above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Boa