FIZA PARVEZ Vs. FIROZ KHAN @ KHABA & ANOTHER

JUDGEMENT

(1.) This petition has been filed under section 378(3) read with section 372 of the Cr.P.C for grant of leave to appeal against the judgment dated 01/09/2016 passed by the XIVth Additional Sessions Judge, Bhopal in S.T No.556/2013 whereby the respondent no.1 Firoz have been acquitted of the offence punishable under section 363, 366 of the IPC.

(2.) In brief, the facts of the case are that on 14/05/2013 respondent took away prosecutrix without consent of the parent of prosecutrix and kidnapped her. In this regard father of the prosecutrix lodged FIR on the same day in police station Aishbag, Bhopal where Crime No.211/2013 was registered under section 363, 366 of the IPC and later on prosecutrix was found in company of the respondent and was produced before the Judicial Magistrate, where she refused to go in the house of her father and also make complaint for commission of rape by her brother before leaving the house with the respondent. On completion of the investigation, the charge sheet was filed and the case was committed to the Sessions Court and respondent no.1 claimed to be innocent and after trial, learned Trial court acquitted the respondent no.1 as the prosecution failed to prove the charges beyond reasonable doubt.

(3.) The prosecutrix have challenged aforesaid finding of the learned trial court and prayed for grant of leave to appeal on the basis that finding of the learned trial court is contrary to the law, the facts and circumstances of the case, the learned trial court has not appreciated the oral and documentary evidence in the right prespective. The prosecutrix has categorically stated against the respondent with regard to the fact constituted alleged offence and about her age learned trial court has wrongly come to the conclusion that the prosecutrix was major at the time of the incident. In view of the law laid down by the Hon'ble Apex Court in the case of Jarnail Singh Vs. State of Haryana, 2013 AIR(SCW) 4438 held that with a view to determine age of the prosecutrix provision contained in Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 shall be followed and according to the aforesaid Rules firstly the date of birth mentioned in the record of the school at the time of admission in Class 1st to be considered in place of report of medical expert. Therefore, finding of the learned trial court is illegal and prosecution has proved its case. There is fair chance to succeed in the appeal, therefore, leave to appeal be granted.