P. Yuvaprakash v. State Represented by Inspector of Police
Case Details
Court No. - 83 Case :- CRIMINAL APPEAL No. - 1410 of 2024 Appellant :- Ramkesh Yadav Respondent :- State Of Up And 3 Others Counsel for Appellant :- Awadhesh Kumar Yadav Counsel for Respondent :- G.A.
Legal Reasoning
Hon'ble Saurabh Srivastava,J. Order on Criminal Misc. Bail Application under Section 389(1) Cr.P.C. 1. Heard learned counsel for the appellant and learned A.G.A. for the State. 2. In pursuance to the specific order for issue of notice the same has been served upon opposite party no. 4/ first informant through family members as reported by the office, but in spite of that no representation even in person either any Advocate has been made at the behest of opposite party no. 4 and as such there is no option to left but to consider the bail application preferred along with the instant appeal press by the learned counsel for the appellant. 3. At the opening argument learned counsel for the appellant submitted that the determination whatsoever has been drawn in shape of judgment and order dated 30.01.2024 passed by learned Special Judge, Exclusive Court (POCSO Act), Maharajganj specifically on the basis of determination of age as 16 years, which has been considered during trial on the basis of educational certificate. As per the copy of SR register produced by Rajeshwar Singh, the Principal of educational institute, namely, Purva Madhyamik Vidyalaya, Sekhuani, who submitted that the victim took her admission in Class 7th and she was promoted in Class 8th and as per the transfer certificate issued on 18.12.2014 the detailed pertains to victim shows that her date of birth is 01.09.2002 and as such on the date of incident she was below 16 years and little about as considered by learned trial court. 4. On the contrary, learned counsel for the appellant submitted that as per ossification report date of birth determined by the medical expert being the doctor was about 18 years and the same is also available at the time of trial which is apparent from the statement recorded by the doctor available in the version extended on behalf of the defence through which the certificate issued by the C.M.O. reflected the age of about 18 years pertains to the victim but the same has been ignored by the learned trial court while extending the sentence of 10 years along with fine of Rs. 10,000/- vide order dated 30.01.2024. 5. For substantiating the argument raised by learned counsel for the appellant he relied upon judgment rendered by Hon'ble Apex Court in case of "P. Yuvaprakash Vs. State Represented by Inspector of Police" decided on 18.07.2023 in Criminal Appeal No. 1898 of 2023, wherein relevant para of judgment is quoted here below:- "19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross- examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9." 6. In the instant matter determination of age has been denied as per the medical report but the same has been considered by the learned trial court only on the basis of registration of the victim in Class 7th, wherein record of transfer certificate has been mentioned. 7. Per contra, learned A.G.A., vehemently opposed the prayer as made in the application but did not dispute the fact that no criminal history is credited in favour of the appellant/applicant, neither he misuse the bail which was extended during trial. 8. In view of the pronouncement held by the Apex Court the instant matter is squarely covered but the rest of the other grounds which has been taken up while preferring the instant appeal shall be subject to outcome of the final adjudication of the instant appeal but at this juncture, learned counsel for the appellant/applicant made out the case for extension of bail in favour of the appellant/applicant. Bail application is allowed. 9. Let the applicant/appellant- Ramkesh Yadav be enlarged on bail in Special Session Case No. 30 of 2015 (State of Uttar Pradesh Vs. Ramkesh Yadav), arising out of Case Crime No.32 of 2015, under Sections 363, 366, 376 I.P.C. and Section 4 Protection of Children From Sexual Offences Act, Police Station- Parsa Malik, District- Maharajganj on his furnishing personal bond and two sureties each of the like amount to the satisfaction of the court concerned. 10. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by court concerned to be kept on the record of this appeal. Order on Appeal List in due course. Order Date :- 5.7.2024 Radhika