Excelsior Correspondent
SRINAGAR, Sept 9: High Court held that instead of the Medical Board opinion with regard to determination of the age of accused, the trial court has to satisfy itself about it before the trial.
Justice Sanjay Dhar set aside the orders of court below whereby the accused was held to be adult at the time of occurrence of offence committed by him and trial was initiated under POCSO Act for kidnapping and sexually assaulting a girl.
Justice Dhar set aside the order of trial court, to the extent of determination of age of the petitioner-accused as more than 18 years and directed the trial court to determine the plea of juvenility of the accused afresh after summoning and examining the members of the Medical Board.
Court has also set aside the order of court below whereby the right of the accused to summon the members of the Medical Board as witnesses was closed.
Court said the petitioner be also given opportunity of producing any other evidence which he may like to produce in support of his plea of juvenility as also the prosecution shall have a right to cross examine the witnesses and to produce the evidence in rebuttal.
“…it is clear that when a question arises before the Special Court as to whether a person is a child or not, such a question has to be determined by the Special Court after satisfying itself about the age of the person. The Special Court has to record reasons for age determination of the person concerned”, read the judgment.
The Special Court Srinagar has relied upon the opinion of the Medical Board without examining any of the members of the Board and without giving the petitioner-Najar as well as the prosecution a chance to put questions to the members of the Board.
“I am afraid the approach adopted by the trial court at the time of declaring the petitioner as an adult and also at the time when his prayer to summon the members of the Medical Board was declined, has not been in accordance with law.”
The father of the prosecutrix on 09.11.2021 had lodged a report with the police alleging therein that on 05.11.2021, he daughter did not return to home from her college and on the basis of this report, the police proceeded to launch a search for the prosecutrix whereafter on 14.11.2021 she was recovered from Chadoora.
It was found that she had been kidnapped by the petitioner-accused Mohammad Sultan Najar on 05.11.2021, where-after she was subjected to forcible sexual intercourse. The police registered FIR No.346/2021 for offences under Sections 363 and 376 IPC.
After conducting investigation of the case, the police found that the age of the victim was less than 18 years and, as such, offences under Section 363, 376 IPC read with Section ¾ of POCSO Act were found established against the petitioner and the challan was laid before the Special Court.
“When a person alleged to have committed an offence, claims before a Court that he/she is a child or if the Court itself is of the opinion that the person was a child at the time of commission of the offence, the court has to make an enquiry, take such evidence as may be to determine the age of such person, whereafter a finding has to be recorded on the matter stating the age of the person as nearly as may be”, High Court recorded.
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