Omlal @ Ulla vs State Of Madhya Pradesh

Petitioner has filed this criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children ) Act 2015 against the judgment

dated 24.01.2019 passed by I ASJ Khandwa in criminal appeal no. 122/2018 whereby learned I ASJ Khandwa affirmed the order dated 03.04.2018

passed by the Principal Judge Juvenile Justice Board Khandwa in which Juvenile Justice Board Khandwa found petitioner guilty under Sections 363,

366, 376 of IPC read with Section 5 (tha)/ 6 of POCSO Act and under Section 15(1)(f) of Juvenile Justice (Care and Protection of Children ) Act

2000 and directed that the petitioner be sent to Special Home for three years.

The prosecution case in brief is that on 21.01.2015 petitioner kidnapped the prosecutrix aged 14 years and committed intercourse with her. She

lodged report vide Ex. P/1. During the investigation she was examined by Dr. Shailendra Katariya (PW/6) vide Medical Report Ex. P/12. Spot map

was prepared vide Ex. P/2 cloths were seized from the possession of the prosecutrix vide Ex. P/3. Mark-sheet was also seized from the father of the

posecutrix vide Ex. P/4. Petitioner was also examined by the doctor vide Ex. P/12. Statements of witnesses were recorded. After investigation

charge-sheet has been filed against the petitioner-juvenile. Petitioner-juvenile denied his guilt and pleaded innocent. .

Prosecution examined six witnesses, petitioner did not examine any witness in his defence. Juvenile Justice Board after appreciation of evidence

found the petitioner guilty and sent him to Special Home for three years. Petitioner filed appeal before First Additional Sessions Judge who affirmed

the judgment passed by the Juvenile Justice Board.

Learned counsel for the petitioner submits that Juvenile Justice Board and learned appellate court failed to consider the principle laid down by this

court and Apex Court and passed the impugned order which is liable to be set-aside. Learned appellate court did not follow the procedure laid down in

the Juvenile Justice (Care and Protection of Children ) Act 2015. Juvenile Justice Board and learned appellate court failed to appreciate the material

evidence on record. Petitioner is a juvenile and he is falsely implicated in the case and on the basis of presumption the impugned order has been

passed which is liable to be set-aside. Apart from this prosecutrix has attained the majority and she is adult. She had filed compromise petition before

Juvenile Justice Board, appellate Court and also before this Court so awarded sentence is very excessive. Both the parties loved each other, so this

court may set-aside the judgment and modify the awarded sentence.

Heard both the parties and perused the record.

Juvenile Justice Board found that prosecutrix is below 18 years. Learned appellate court affirmed this finding. Prosecution produced Dhakil Kharij

Register vide Ex. P/6 and petitioner did not challege this fact before this Court that at the time of incident prosecutrix was below 18 years, so it is

proved that at the time of incident prosecutrix was below 18 years.

Prosecutrix deposed before the trial court that petitioner kidnapped her and petitioner threatened to kill her and committed intercourse with her. This

finding is corroborated by Dr. Shailendra Katariya PW/6. Dr. Shailendra Katariya PW/6 deposed before Juvenile Justice Board that intercourse was

done with prosecutrix forcibly. There are no material contradictions and omissions in the evidence of witnesses. Prosecutrix lodged report vide Ex.

P/1, this report is proved by the Assistant Sub-InspectorAnpurna PW/4. Sunita PW/2 also deposed this fact that petitioner kidnapped the prosecutrix.

Father of the prosecutrix PW/3 also deposed that Sunita PW/2 told him everything about the incident. There is no material omission or contradiction in

the evidence of witnesses, so Juvenile Justice Board found petitioner guilty for the above-said offence and this finding is affirmed by the learned

appellate court. This finding is based on evidence and legal principle of law, so there is no illegality and infirmity in the order passed by both the courts.

So conviction under Sections 363, 366, 376 of IPC read with Section 5 (tha)/ 6 of POCSO Act is affirmed.

It is admitted fact that prosecutrix and her father filed compromise petition before the Juvenile Justice Board and before appellate court and now

prosecutrix also appeared before this Court. Prosecutrix admitted this fact that she and petitioner are the member of Korku and in the Korku caste

there is a custom that boys and girls like each other and run away. Later, the boys get married with the girls with consent of both the families. So it is

established that both the parties have settled their matter. Apart from this social investigation report has been received and it is mentioned in the report

that there is best interest of juvenile to live with his father. It is also evident that Juvenile Justice Board did not call the report from the P.O. before

passing the order. It is obligatory to the Juvenile Justice Board to call the social investigation report before passing the order under Section 15 of

Juvenile Justice Board Act, but Juvenile Justice Board did not comply the law. So in this view of the matter, Petitioner has served almost half of the

period, his best interest is to live with his father, Petitioner is kept in special home since 20.04.2019, so orders dated 03.04.2018 and 24.01.2019 are

modified to the extent that period already spent by the petitioner at Special Home would be sufficient and justified in view of specific facts of the

present case. It is directed to released the petitioner forthwith.

Accordingly, criminal revision is partly allowed and disposed of.

Certified copy as per rules.