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2004 DIGILAW 28 (CAL)

SAROJ SINGH, RABI SINGH v. STATE OF WEST BENGAL

2004-01-14

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure (hereinafter called the Code) is directed against the order dated 13. 11. 03 passed by the learned Sub-Divisional judicial Magistrate (hereinafter called the S. D. J. M.), Howrah in connection with G. R. Case No. 1861 of 2002 arising out of Sibpur P. S. Case No. 275 dated 18. 11. 02 thereby refusing petitioner's prayer to release the victim girl into his custody. ( 2 ) LEARNED Advocate for the petitioner contended that the petitioner is the husband of the victim girl Rinku @. Rinki Tiwari and there is valid marriage certificate in support of their marriage. Sioji Tiwari, father of the victim lodged the F. I. R. on 18. 11. 02 on the basis of which Sibpur P. S. Case no. 275 under Sections 363/366/120b of the Indian Penal Code (hereinafter called the I. PC.) was started against the petitioner and other members of his family. In the F. I. R. the informant falsely alleged that the victim was a minor of aged 15 years only. In fact, the victim is major and the voters' list of village kamalpur under Kanchanpur Panchayat of District Balia as on 1. 1. 99 recorded age of the victim 18 years. In the ossification test also the doctor opined that the victim is 17 years in age. The victim affirmed an affidavit before the Notary Public at Dhanbad on 20. 11. 02 wherein she stated her age as 21 years. The victim has in the meantime given birth to a male child on 5th August, 2003. She has been lodged in Liluah Rescue Home along with baby child which is not desirable at all because, the victim is not an accused of the case. Therefore, when the victim is major and is wife of the petitioner, the victim should be released and should be given in custody of the petitioner. The impugned order of the learned Magistrate being bad in law should be set aside. ( 3 ) MR. Sk. Kasem Ali Ahmed appearing for the State submitted that according to F. I. R. age of the victim is only 15 years and she is a minor. The impugned order of the learned Magistrate being bad in law should be set aside. ( 3 ) MR. Sk. Kasem Ali Ahmed appearing for the State submitted that according to F. I. R. age of the victim is only 15 years and she is a minor. Marriage of a Hindu minor girl without consent of her guardians and without absence of her guardians before the Marriage Registrar should be regarded as void marriage. Moreover, the marriage certificate shows that the marriage was registered under the Hindu Marriage Act and such marriage registration is bad in law when her parents were not present before the Marriage registrar. It could have been registered under the Special Marriage Act and not under the Hindu Marriage Act. The affidavit affirmed before Notary Public at Dhanbad cannot be given any reliance and the affidavit is out of jurisdiction of this Court. The application itself is not maintainable as the affidavit in support of this revisional application has been affirmed by the petitioner, who is the principle accused of this case and against him not only a case under section 363/366 of I. PC. is pending but, subsequently Section 376 of I. PC. has been added. The papers produced by the petitioner cannot be relied upon as all the papers have been prepared and manufactured by the petitioner and his family members. The order of the learned Magistrate being correct and proper requires, no interference. ( 4 ) AFTER hearing the learned Advocates of the parties and perusing the contents of application and annexures made thereto I find that the victim girl Rinki @ Rinku Tiwari is the daughter of the informant namely, Sioji Tiwari. On the basis of that F. I. R. Sibpur P. S. Case No. 275 under Sections 363/366/ 120b of I. PC. was stated against the present petitioner and others and subsequently Section 376 of I. P. C. has also been added. It is also clear that this petitioner is the principle accused of the case as the allegation is that this petitioner kidnapped the victim. It also transpires from papers that this petitioner has married the victim subsequently, and it is an admitted fact that, on 5. 8. 03 the victim has given birth to a male child. It is also clear that this petitioner is the principle accused of the case as the allegation is that this petitioner kidnapped the victim. It also transpires from papers that this petitioner has married the victim subsequently, and it is an admitted fact that, on 5. 8. 03 the victim has given birth to a male child. ( 5 ) FROM the impugned order of the learned S. D. J. M. , Howrah I find that the victim is not willing to return to her father's custody and accordingly the learned Magistrate observed that the victim should be kept in safe custody and so the victim is now languishing inside Liluah Rescue Home. Learned Magistrate observed that he has no jurisdiction to verify the voter's list and the marriage certificate produced before him showing marriage of the victim with the present petitioner. Learned Magistrate rejected the prayer observing that the petitioner is the accused of the case and release of the victim in his custody cannot be considered. ( 6 ) AFTER going through the order of the learned Magistrate and considering the submissions made by the learned Advocates of both parties i am of opinion that the learned Magistrate has made mistake and failed to grasp the nature of the matter. The victim is not an accused of the case and she is the main witness of the case. A victim, who is minor, should be handed over to the custody of her parents. In the instant case it is difficult to come to a definite conclusion as to what is the actual age of the victim at this stage, from the papers and documents available before the Court probable age of the victim can be assessed. ( 7 ) NO birth certificate or school admission register was produced before the lower Court or this Court to show what was the actual date of birth of the victim, or what was the date of birth recorded in school admission register regarding age of the victim. The ossification test report was conducted at Howrah Sada'r Hospital and the doctors opined that approximate age of the victim is 17 years. The ossification test report was conducted at Howrah Sada'r Hospital and the doctors opined that approximate age of the victim is 17 years. It is well-known that a variance of 2 years is always permissible regarding age ascertained through ossification test report as ossification test report is a scientific opinion concerning different aspects regarding growth of different parts of the body of such person was examined by the doctor. If two years relaxation towards upper side is taken the victims age becomes to 19 years. If two years is taken towards lower side, the victims age becomes to 15 years which was mentioned in F. I. R. At the same time we cannot ignore the voters' list dated 1. 1. 99 in respect of village kamalpur under Kanchanpur Panchayat of District Balia which is annexure 'p-2' of the application. In the said voters' list name of the victim Rinku has been recorded showing her father as Sioji and the said voters' list shows age of the victim 18 years on 1. 1. 99. Voters' list is prepared by Election Depart- ment of Government and no question of interference by accused petitioner to record age of the victim 18 years on 1. 1. 99 arises when the incident occurred much later on 18. 11. 2002. ( 8 ) THE Supreme Court in Bhoop Ram v. State of U. P. reported in 1990 Cr LJ 2671, though in a different context, observed that, medical certificate is based on estimate and possibility of an error of estimate creeping into the mind cannot be ruled out. In the instant case when medical opinion in the form of ossification test report and the voters' list showing the age of the victim are available before the Court, it is desirable that voters' list should be given preference in concerning age of the victim keeping aside the medical report. Here we should not forget the cardinal principle that the victim is not an accused but, a witness of the case and, she should not be kept in jail or in Government rescue home. In the instant case the age of the victim in the voters' list being annexure 'p-2' should be preferred. If the ossification test report is considered carefully it can be interpreted that the victim had attained sense of understanding or maturity of understanding at the relevant time. In the instant case the age of the victim in the voters' list being annexure 'p-2' should be preferred. If the ossification test report is considered carefully it can be interpreted that the victim had attained sense of understanding or maturity of understanding at the relevant time. The voters' list (annexure P-2) strengthens it and it shows that victim was suijuris at the relevant time of incident. ( 9 ) THIS Court at this stage would not enter into legality and validity of the alleged marriage between the petitioner and the victim. If any objection is raised regarding validity of the marriage itself, the Civil Court is the proper forum to consider whether the said marriage was valid or void. It is admitted fact that, the victim has been married by this petitioner and their marriage was registered by the Marriage Register on 18. 11. 02. ( 10 ) IN the case of Smt. Raj Kumari v. Superintendent, Women protection House, Meerut reported in 1998 Cr LJ 654 a Division Bench of allahabad High Court directed release of the victim girl according to her wishes though according to medical report in the said case the victim was less than 17 years. It was observed that she, even a minor, cannot be detained in a protective home against her wishes. In the instant case the learned Magistrate should have released the victim according to her wishes. ( 11 ) THE petitioner being the principal accused cannot take custody of the victim as the Court should not encourage release of the victim into custody of an accused involved in a case under Sections 366/376 of I. P. C. At the same time the legal principle as indicated above cannot be ignored and the learned Magistrate cannot confine the victim in the Government rescue home against her wishes. The victim is entitled to be released according to her wishes on the basis of her prayer subject to the conditions that may be imposed by the learned S. D. J. M. to secure her attendance at the time of trial. Therefore, if the victim makes any prayer before the learned S. D. J. M. , the learned Magistrate shall act in accordance with law in view of the guidelines indicated above. Therefore, if the victim makes any prayer before the learned S. D. J. M. , the learned Magistrate shall act in accordance with law in view of the guidelines indicated above. ( 12 ) THE above discussion makes it explicit that the order of the learned s. D. J. M. rejecting prayer of this petitioner to take custody of the victim cannot be regarded as bad in law and the said order requires no interference. The revisional application accordingly fails and is disposed of. Learned S. D. J. M. shall act in accordance with law in the light of the indications mentioned in the body of this order. ( 13 ) SEND a copy of the order to the learned S. D. J. M. , Howrah for information and necessary action.