M. Suresh vs The State

R. Mala, J.—The petitioner has come forward with this petition to set aside the order dated 25.08.2015 passed in Cr.M.P. No. 276 of 2015 in S.S.C. No. 10 of 2013 on the file of the Mahalir Court (Fast Track Mahila Court), Thanjavur.

The learned counsel for the petitioner would submit that the petitioner is facing criminal trial in S.S.C. No. 10 of 2013 for the offence under Section 8 of Protection of Children from Sexual Offences Act, 2012 and he filed an application to prove the age of the victim girl. Dr. Malarvizhi has taken x-ray and even though the x-ray and report was filed, the same were not marked and hence, the petitioner filed an application to permit him to examine the said Dr. Malarvizhi and also to mark the documents along with the particulars with regard to the admission of the victim girl as inpatient from 19.08.2013 to 22.08.2013. After hearing both sides, the trial Court has allowed the application in respect of production of inpatient records of the victim girl, whereas, dismissed the petition in respect of call for the doctor Malarvizhi and produce the documents viz., x-ray report. Against the said order, the petitioner has filed the present application.

The learned counsel would further submit that since the birth certificate has been filed as Ex. P10 before the trial Court, the trial Court has dismissed the same. As per the medical report, it was stated that the individual has completed 18 years and not completed the age of 20 and hence, she has given consent for sexual intercourse. Therefore, to prove his defence, the examination of Dr. Malarvizhi and the marking of x-ray report is essential and that factum was not considered by the trial Court and hence, he prayed for setting aside the order of the trial Court. To substantiate the same, the learned counsel relied upon a decision of the Apex Court in Natasha Singh Vs. CBI (State), and submitted that adducing evidence in support of the defence is a valuable right and hence, an opportunity must be given to the petitioner/accused to put forth his defence and hence, he prayed for allowing of the application.

The learned Government Advocate (criminal side) would submit that the petitioner is an accused facing a criminal trial in S.S.C. No. 10 of 2013 for an offence under Section 8 of Protection of Children from Sexual Offences Act, 2012. The trial Court closed the prosecution witnesses and 313 of Cr.P.C. questioning is also over and the case is now posted for defence witnesses and hence, he prayed for the dismissal of the application.

I have considered the rival submissions made on either side and perused the materials available on record.

The petitioner is facing a criminal trial for an offence under Section 8 of Protection of Children from Sexual Offences, Act 2012. The petitioner wants to prove that at the time of commission of offence, the victim girl is completed 18 years. As per the Indian Penal Code, at the age of 16, a girl is competent to give consent for sexual offence. To prove the same, x-ray report is necessary. As per the x-ray report, the victim girl has completed 18 years and not completed 20 years. To prove the same, the examination of the Doctor Malarvizhi is necessary. Perusal of the impugned order would show since the birth certificate has been filed and the same has been marked to prove the date of birth of the victim girl, there is no necessity for examination of the radiologist and mark her opinion and hence, the trial Court has dismissed the application.

It is well settled dictum of the Apex Court that once birth certificate is available, which is full proof to prove the age and birth of the person, there is no necessity to rely upon the x-ray report of the radiologist report.

It is appropriate to consider the decision relied on by the petitioner in Natasha Singh Vs. CBI (State), , wherein, it was held that adducing the evidence in support of the defence is a valuable right. The above said citation is not applicable to the facts of the present case. In the said case, the appellant has filed an application to call for three defence witness, wherein, it was held that opportunity must be given to the appellant to prove the innocent. Furthermore, the said case is under Prevention of Corruption Act along with Sections 120(B) read with Section 420 , 467 , 468 and 471 of the Indian Penal Code. In such circumstances, I am of the view that the said citation is not applicable to the facts of the present case. Because, here, the birth certificate of the victim has been marked as Ex. P10, which would reveal the age of the victim girl and hence, there is no necessity for examining the radiologist and marking her opinion. Therefore, I do not find any infirmity or illegality in the order passed by the learned Mahalir Judge and the same is liable to be confirmed and the criminal original application deserves to be dismissed.

Accordingly, this criminal original application is dismissed. Consequently, connected M.P.(MD) No. 1 of 2015 is also dismissed.