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2013 DIGILAW 1467 (ALL)

INDRA @ SUHANI v. STATE OF U. P.

2013-05-20

KARUNA NAND BAJPAYEE, RAKESH TIWARI

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JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—This Habeas Corpus Writ Petition has been filed by Smt.Indra alias Suhani daughter of Santosh Kumar Awasthi through ShivKant alias Shubham with whom she claims to have married with her free will, assailing the validity of her detention in the Nari Niketan where presently she has been kept vide order dated 16.4.2013 passed by Chief Judicial Magistrate. On 2.5.2013 this Court had directed the respondent No. 5 to produce the petitioner in the Court. In compliance of the order the petitioner was produced in the Court and a counter-affidavit on behalf of respondent No. 6 was also filed. Today a rejoinder-affidavit has also been filed on behalf of the petitioner who herself has again been produced before us. 2. We have heard learned counsel for the petitioner as well as learned counsel for the respondent and learned AGA. It seems that there was an FIR lodged against one Shubham alongwith some other co-accused under Sections 363, 366-A, 504 and 506 IPC at P.S. Kotwali Lalitpur under case crime No. 2265 of 2012. According to which petitioner Indra alias Suhani studying in Class XII was enticed away on 27.11.2012 by Shubham with the aid and assistance of other co-accused. It also transpires that a criminal misc. writ petition No. 5015/13 was filed on behalf of Smt.Indra alias Suhani, Shiv Kant alias Shubham, Smt.Rama and Smt.Maya with the prayer to quash the aforesaid FIR. A division bench of this Court was pleased to pass a detailed order on 22.3.2013 in which several directions were given to the concerned I.O. and C.J.M. This order has been annexed as Annexure-4 to the writ petition. The relevant portion of the order is quoted herein below : “.............Considering the submission made by the learned counsel for the petitioners that the kidnapped girl Km. Indra @ Suhani is major and she has performed the marriage with petitioner No. 2 Shivkant @ Shubham and she is living in his company as his house wife with her free will and consent, it is directed that in case the alleged kidnapped girl Km. Indra @ Suhani is major and she has performed the marriage with petitioner No. 2 Shivkant @ Shubham and she is living in his company as his house wife with her free will and consent, it is directed that in case the alleged kidnapped girl Km. Indra @ Suhani appears/produced before the Court of learned C.J.M., Lalitpur within 20 days from today and moves an application for her medical examination for recording her statement under Section 161 Cr.P.C. and 164 Cr.P.C., the learned magistrate concerned shall fix a date for the same purpose and shall summon the first informant and officer in charge of the police station concerned for the purpose of her identification and to record her statement under Section 161 Cr.P.C. after her identification by them, she shall be medically examined by the C.M.O. concerned to determine her age, then she shall be interrogated by the I.O. and her statement shall be recorded under Section 161 Cr.P.C., if thereafter, the I.O. moves an application before learned magistrate concerned to record her statement under Section 164 Cr.P.C., her statement shall be recorded under Section 164 Cr.P.C. if she is found major and does not support the F.I.R. version, the petitioners shall not be arrested till submission of the police report under Section 173(2) Cr.P.C. but the petitioners shall co-operate with the investigation. In case she appears to be minor or she is major and supports the prosecution version, the I.O. shall be free to arrest the accused person. It is further directed that issue of custody of the alleged kidnapped girl shall be decided by the C.J.M. concerned in accordance with law. It is further directed that in case the petitioners approach the S.P. Lalitpur to provide them protection for the purpose of appearing before the Court concerned to record the statement of the kidnapped girl Km. Indra @ Suhani under Section 164 Cr.P.C. and for medical examination, the same shall be provided.” 3. It further transpires that in compliance of the above mentioned order, the petitioner was examined under Section 164 Cr.P.C. and was also put to medical examination for the determination of her age. The statement of the petitioner under Section 164 Cr.P.C. has been annexed as Annexure-5 to the writ petition. 4. It further transpires that in compliance of the above mentioned order, the petitioner was examined under Section 164 Cr.P.C. and was also put to medical examination for the determination of her age. The statement of the petitioner under Section 164 Cr.P.C. has been annexed as Annexure-5 to the writ petition. 4. The perusal of the statement recorded under Section 164 Cr.P.C. Seems to be a brazen statement of the petitioner wherein she has narrated about her love affair with Shubham alias Shiv Kant and the entire details as to how her father did not countenance to this relationship with the boy. She also stated before the Chief Judicial Magistrate that she herself had called the boy on the Station and not only coaxed and persuaded the boy to take her away alongwith him but had also threatened her paramour that in case he will not take her alongwith him she will commit suicide. The petitioner has also annexed certain photographs showing the garlanding of each other (between the petitioner and her alleged husband Shubham), in order to prove her marriage. 5. It appears that during the proceedings that took place in the Court of Chief Judicial Magistrate in compliance with the order of this Court dated 22.3.2013 the father of the petitioner submitted the high school certificate of Suhani showing herself to be a minor still. It was this document which prevailed on the discretion of Chief Judicial Magistrate who rated this certificate as a superior and better document in comparison to the medical report. Though the learned C.J.M. has noted in the impugned order the assertion of the petitioner that she had contracted her marriage with Shubham and also her insistence to go alongwith her alleged husband, but the age given in high school certificate seems to have completely swept him off his feet and he felt compelled to send the girl to Nari Niketan in view of her alleged minority. 6. We have already quoted the relevant portion of the division bench order of this Court dated 22.3.2013 in compliance with which the whole proceedings took place before the Chief Judicial Magistrate. 6. We have already quoted the relevant portion of the division bench order of this Court dated 22.3.2013 in compliance with which the whole proceedings took place before the Chief Judicial Magistrate. This Court had directed the medical examination of the girl in order to determine her age and had also directed that if she is found major through medical examination, the accused may not be arrested till submission of the police report under Section 173(2) Cr.P.C. The C.J.M. In his order has categorically mentioned that according to the medical examination, the age of the girl is 19 years. 7. During the course of argument learned AGA has drawn our attention to one more document. It is a certified copy of Family Register which has been submitted before us as Annexure-2 in the affidavit of compliance filed on behalf of the State. According to this document the date of birth of the petitioner has been shown as 1.5.1996. The relevance of this document is that the date of birth shown in this document is at complete variance with the date of birth shown in high school certificate. This is true that this document was not filed before the learned C.J.M. and he was not having the advantage to adjudge the correctness or authenticity of the date of birth shown in high school certificate on the basis of another relevant document. But now as this document is before us we cannot ignore it. The counsel or the petitioner seems to be right when he contends that the high school certificate cannot be attributed a divine status. It is not an infallible document. The tendency of the parents to get the age of their offspring recorded on the lower side is well known for its notoriety. It is true that in certain contexts the age recorded in high school certificate has got a preferential status and due weight and importance has to be attached to it in many contexts but where the age of the girl is itself seriously disputed and where the girl herself denies the fact of her minority and claims to have attained majority, the Court cannot ignore the sharp contradiction of the recorded age in two different documents. 8. The counsel for the petitioner has also placed before us the case of Daya Chand v. Sahib Singh and another, AIR 1991 S.C. 930 . 8. The counsel for the petitioner has also placed before us the case of Daya Chand v. Sahib Singh and another, AIR 1991 S.C. 930 . The relevant portion of the citation may be quoted usefully as under: “..............In a case like this, the conflicting evidence of the record from the two schools is not safe to rely on, particularly when the medical opinion, based on radiological examination and other physical characteristics, is available for determining the age of Sahib Singh more accurately. The data available as a result of the medical examination, apart from the opinion of the doctors based on the medical examination, with reference to Modi’s Medical Jurisprudence, 21st Ed., shows that Sahib Singh’s age on 16.3.1989, the date of medical examination, must have been definitely above 19 years since the fusion of some of the bones which was found on that date, could not occur below the age of 19 years at the minimum. This would mean that on the date of the offence, he must have been definitely above the age of 18 years at least........................................ ............The tendency of many to have lesser age recorded in school ls well-known and, therefore, the date of birth being recorded as 1.1.1973 in the other school, can be easily appreciated but cannot be accepted, because the same is clearly in conflict with the medical evidence. In this state of evidence, there was no justification for the High Court to have interfered with the concurrent finding of the Metropolitan Magistrate and the Additional Sessions Judge, that the age of Sahib Singh on 26.7.1988, the date of offence, was above 16 years on account of which he was not a juvenile.” 9. In the event of two contradictory statements there are only three possibilities. Either one is true and another false or another is true and the one is false or both are false. Both can never be true. In the wake of the mutually conflicting date of births of the same girl in two different documents and also keeping in view the findings recorded by the CJM that according to the medical examination the girl is 19 years of age we think that the age shown in the high school certificate looses its sheen and much of its authenticity. In the back drop of the aforesaid circumstances we think that Suhani’s detention in Nari Niketan has lost its justification. In the back drop of the aforesaid circumstances we think that Suhani’s detention in Nari Niketan has lost its justification. We therefore, direct that she should be released from Nari Niketan forthwith. Any observations made in this order must not be construed to the prejudice of either party in the trial if any, as they confined to the purpose of disposing this petition alone. Petition stands disposed of in terms of above observations. Let a copy of this order be communicated to the respondent concerned for compliance forthwith. —————