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2013 DIGILAW 1013 (ALL)

CHANDAN v. STATE OF U. P.

2013-04-03

RAMESH SINHA

body2013
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Jai Singh Chandel, learned counsel for the applicant, learned A.G.A for the State and Sri M.C. Singh, learned counsel appearing on behalf of opposite party No. 2. 2. The applicant, through the present application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the proceeding in S.T. No. 11 of 2012, under Sections 363 and 366 I.P.C, pending in the Court of Additional Sessions Judge, Anoopshahar, Bulandshahar. 3. The brief facts of the case are that a First Information Report was lodged by the opposite party No. 2 the father of the prosecutrix (hereinafter referred to as the complainant) against the applicant and two other persons namely Hosiyar son of Khacheru and Jagdish son of Teja alleging that on 19.5.2011 at about 4.00 p.m. in the morning his daughter aged about 15-16 years had gone to attend call of nature in the Jungle which was near the house of the complainant and when she did not return he made a search of her daughter and came to know that her daughter was enticed away by Chandan son of Dharamveer (applicant), Hosiyar Singh son of Khacharu and Jagdish son of Teja. He made a search of her daughter from his relatives and also made a search of by three above named accused persons but they could not be traced. It is stated that several persons of the village have seen her daughter being taken by the said accused persons. The accused persons are influential and men of criminal antecedent, hence, he prayed for registration of First Information Report against them. 4. The F.I.R of the incident was lodged by the complainant on 22.5.2011 at police station Anoopshahar, District Bulandshahar which was registered as Case Crime No. 34/11, under Sections 363 and 366 I.P.C. 5. The medical of the prosecutrix was done on 15.7.2011 and her statement was recorded under Section 161 Cr.P.C on 12.7.2011 and the statement of the prosecutrix recorded under Section 164 Cr.P.C was recorded on 16.7.2011 respectively. 6. The medical of the prosecutrix was done on 15.7.2011 and her statement was recorded under Section 161 Cr.P.C on 12.7.2011 and the statement of the prosecutrix recorded under Section 164 Cr.P.C was recorded on 16.7.2011 respectively. 6. The investigation was carried out and thereafter charge-sheet was submitted against the applicant and two other co-accused persons namely Hosiyar Singh and Jagdish, under Sections 363 and 366 I.P.C on 31.9.2011 and the Chief Judicial Magistrate, Bulandshahar took cognizance of the offence and registered the case as Case No. 6416 of 2011 and committed the case to the Court of Session. 7. The applicant has approached this Court for quashing of the entire proceedings of S.T. No. 11 of 2012, under Sections 363 and 366 I.P.C pending in the Court of Additional Sessions Judge, Anoopshahar, District Bulandshahar by filing the present 482 Cr.P.C application. 8. It has been contended by the learned counsel for the applicant that the applicant is the nephew of co-accused Hosiyar Singh with whom the prosecutrix Sita had married. She is a major girl aged about 19 years, as per the medical report which is based on ossification test which was conducted on 15.7.2011 by the order of the C.M.O. A medical certificate has been issued by the C.M.O on 15.7.2011 which has been annexed as Annexure-4 to the accompany affidavit. He further pointed out that as per the statement of the prosecutrix Sita recorded under Section 164 Cr.P.C on 16.7.2011 she has admitted that she was known to co-accused Hosiyar Singh for the last four years and she stated that she had left her house voluntarily with co-accused Hosiyar Singh who had not enticed her and they had gone to Jaipur where they lived in rented house for about 15-20 days. Thereafter had gone to Aligarh where they got themselves married in Arya Samaj Mandir then they went to Sikandarabad and lived there for about one month. Co-accused Hosiyar Singh was working in a private company. It was further stated by her that she had established sexual relationship with co-accused Hosiyar Singh on her own sweet will and she married him and she want to go with her husband. She was apprehending danger to her life from the members of her family. Co-accused Hosiyar Singh was working in a private company. It was further stated by her that she had established sexual relationship with co-accused Hosiyar Singh on her own sweet will and she married him and she want to go with her husband. She was apprehending danger to her life from the members of her family. It was categorically stated by her that the applicant and co-accused Jagdish did not commit any rape on her and they have been falsely implicated by the member of her family. The said statement of the prosecutrix has been annexed as Annexure 5 at page 11 of the accompany affidavit. 9. In view of the said statement of the prosecutrix under Section 164 Cr.P.C it was submitted that the prosecutrix was a major girl and she has left her parents’ house with her own sweet will and had accompanied with co-accused Hosiyar Singh and stayed with him at several places and returned after two months of the incident when she was arrested by the police and handed over to her parents. Hence no offence under Sections 363 and 366 I.P.C is made out against the applicant and his prosecution in the case is liable to be quashed by this Court. 10. It was further submitted that the applicant has been nominated in the present case merely because he is nephew of co-accused Hosiyar Singh. It has been pointed out that the applicant is a student of M.Sc and having good academic record. He has passed out first class in High School and Intermediate and in B.Sc IInd year by obtaining more then 80% of mark. The academic record of the applicant has been annexed as Annexure-R.A-1 at page Nos. 5 to 10. 11. Sri M.C. Singh, learned counsel for the complainant-opposite party No. 2 has vehemently opposed the prayer for quashing of the proceedings against the applicant and has submitted that the charge-sheet discloses cognizable offence against the applicant, hence he is liable to be tried by the Court below. He further submitted that the prosecutrix is a minor girl as stated in the First Information Report lodged by the father of the prosecutrix. He has also drawn the attention of the Court to the High School certificate of the prosecutrix which has been annexed as C.A-1 at page Nos. 13 and 14, according to which the date of birth of the prosecutrix is 9.9.1995. He has also drawn the attention of the Court to the High School certificate of the prosecutrix which has been annexed as C.A-1 at page Nos. 13 and 14, according to which the date of birth of the prosecutrix is 9.9.1995. She is minor girl aged about 16 years on the date of the incident. He further submitted that at the time of incident she was minor, therefore her consent is immaterial. 12. Learned A.G.A also adopted the argument of the learned counsel for the complainant. 13. Considered the submission advanced by the learned counsel for the parties. 14. From the perusal of the record, it is apparent that the prosecutrix, as per medical opinion, is aged about 19 years and in her statement recorded under Section 164 Cr.P.C she has categorically stated that she has voluntarily left her parents’ house on 19.5.2011 and had accompanied with co-accused Hosiyar Singh and travelled at several places and enjoyed with company and further married him at Aligarh and established sexual relationship with co-accused Hosiyar Singh and remained with him for about two months. 15. So far as the contention of the learned counsel for the opposite party No. 2/complainant that the prosecutrix was a minor girl at the time of incident as per High School certificate, hence her consent was immaterial does not appears to be sustainable in the eyes of law. 16. The learned counsel for the complainant appears to have made the said argument thinking that when there was a medical report assessing the age of victim and simultaneously there was a record indicating that the date of birth of the victim as mentioned in the school record then the preference had always to be given to the school record and not to to the medical record. It is relevant point out here that there was no such law which could justify the argument of the learned counsel for the complainant that in case of present nature the assessed aged of the victim for the offence of the present nature has to be recorded in the light of the entries made in the school record. It is relevant point out here that there was no such law which could justify the argument of the learned counsel for the complainant that in case of present nature the assessed aged of the victim for the offence of the present nature has to be recorded in the light of the entries made in the school record. Probably the learned counsel for the complainant was having in his mind the provision of Juvenile Justice (Care and Protection) Rules 2007 which by virtue of Rule 12 had granted credence to the age of the victim of such an offence which is mentioned in the High School certificate over the medically assess the age of the victim. 17. In my opinion it is misreading of law which appears leading the learned counsel for the complainant to raise the said argument. In the present case the age of prosecutrix is 19 years and as such she was a major and she was not an accused. She was not a juvenile in conflict with law and as such she could not be subjected to wrong interpretation of law. 18. From the statement of the prosecutrix Sita it could not be said that it was an act of ‘taking away or enticed away’ rather it would be a case of elopement as was indicated by the Apex Court in the of Varadarajan v. State of Madhya Pradesh, AIR 1965 SC 942 , where the Apex Court had distinguished the case of taking or enticing away from the mere act of elopement and in that connection has pointed out that even if a lady, who had not attend the majority i.e. the age of 18 years herself goes with a man of her own volition then it could not be said to be a case of either taking away or enticing away a minor women out of keeping of her lawful guardianship. It was further held that in such factual situation no offence either under Sections 363, 366-A or 366 I.P.C could be said to be made out. It was further held that in such factual situation no offence either under Sections 363, 366-A or 366 I.P.C could be said to be made out. The Apex Court in the case of Jaimala v. Home Secretary, Government of Jammu and Kasmir, AIR 1982 SC 1297 , has held that in addition of three years is to be made to medically assess the age and thus from the medical report of the prosecutrix it is evident that she is aged about 19 years of age. 19. Admittedly, as per the statement of the prosecutrix no offence under Sections 363 and 366 I.P.C is made out against the applicant. Moreover the academic record of the applicant also shown that he is a brilliant student and his implication by the complainant in a mala fide manner cannot be ruled out. 20. In view of the above, the prosecution of the applicant in the aforesaid case is wholly unwarranted and is hereby quashed, accordingly. 21. The petition stands allowed.