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2017 DIGILAW 406 (JK)

Anil Kumar v. State of J&K

2017-07-24

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. The instant revision petition is filed by one Anil Kumar S/o Sh. Ram Ditta R/o Village Thalwal, Tehsil Mandal, District Jammu against the order dated 06.10.2016 of learned Special Excise Magistrate, Jammu, allowing the application filed by Jissa Ram, father of Shilpa Devi, for handing over the custody of Shilpa Devi who was kept in Apna Ghar, Kachi Chawni, Jammu on suparadnama as also against order dated 12.07.2016 passed by the learned Magistrate dismissing the application filed by Anil Kumar, husband of Shilpa Devi for the release of Shilpa Devi W/o Anil Kumar from the custody of Incharge Apna Ghar, Kachi Chawni, Jammu, and allow her to join the society of her husband or otherwise according to her choice. 2. It is stated in the petition that the petitioner is the husband of respondent No.3 Shilpa Devi and the marriage between the parties was solemnized on 08.03.2016 in accordance with Hindu Rites. That before solemnization of the marriage, respondent No.3 was got medically examined from Arora X-Ray, Ultrasound, EEG and ECG Clinic, opposite SMGS Hospital Gate, Shalimar Road Jammu for determining her age and the Radiologist after conducting the test of different body bones including wrist, elbow & shoulder, has opined that the age of Shipla Devi was 18 years. That on 09.03.2016 respondent No.3, after filing a complaint against respondent No.2 and other relations, was returning back to her matrimonial house along with her husband, they were intercepted by the police and produced before the Court. The petitioner was taken to Police Station, Nowabad whereas respondent No.3 was sent to Apna Ghar, Kachi Chawni, Jammu and on the same day, respondent no.3 was medically examined by the police in Govt. Hospital Sarwal, Jammu, and after conducting ossification test on Shilpa Devi, the radiologist gave an opinion that her age was more than 16 years and less than 18 years. On 11.03.2016, the statement of respondent No.3 was recorded under Section 164-A Cr.P.C. and in her statement the age was recorded as 20 years and in her statement, she stated that she got married with Anil Kumar out of her free will and without any coercion. 3. On 11.03.2016, the statement of respondent No.3 was recorded under Section 164-A Cr.P.C. and in her statement the age was recorded as 20 years and in her statement, she stated that she got married with Anil Kumar out of her free will and without any coercion. 3. It is further stated that the petitioner filed an application before the trial Court for release of respondent No.3 from custody of Incharge Apna Ghar, Kachi Chawni Jammu and allow her to join the society of her husband, but the trial Court dismissed the same vide order dated 12.07.2016 ignoring the fact and the law on the subject. Respondent No.2 (father of respondent No.3) also filed an application for handing over the custody of respondent No.3, which came to be allowed by the trial Court vide order dated 06.10.2016 directing the handing over of the prosecutrix to natural guardian father subject to his executing bond with additional surety who shall be responsible for causing any physical harm to the victim. 4. The instant revision petition has been preferred against impugned orders on the ground that the same are against facts and law. The challan in the case has been presented and the petitioner has been charge sheeted under Section 363 RPC although no offence under Section 363 RPC is made out against the petitioner. The petitioner being husband is the legal guardian of respondent No.3. Order dated 06.10.2016 is in violation of natural justice as the petitioner being husband of respondent No.3 has not been afforded an opportunity of being heard. The trial Court has ignored the statement of the prosecution witness namely Shilpa Devi recorded in the Court as witness under Section 164-A Cr.P.C as well as the statement of the prosecutrix recorded in the Court wherein she has expressed her willingness to reside with her husband with whom she was duly married. In her statement recorded under section 164-A Cr.P.C., she has stated that she had called Anil Kumar through telephone and left with him during the night and she married with him out of her free will and without any coercion. Thus, orders impugned are also against the wishes of respondent No.3. 5. In support of his contentions, learned counsel for the petitioner relies upon the decision of Hon’ble Supreme Court in case titled as ‘S. Varadarajan Vs. Thus, orders impugned are also against the wishes of respondent No.3. 5. In support of his contentions, learned counsel for the petitioner relies upon the decision of Hon’ble Supreme Court in case titled as ‘S. Varadarajan Vs. State of Madras’ reported as 1965 AIR (SC) 942, as also the decision of High Court of Himachal Pradesh in case titled as ‘State of H.P. Vs. Mano alias Man Singh’ reported in 2010 Law Suit (HP) 2151. 6. With the aforementioned submissions, learned counsel prays for setting aside of the impugned orders and allowing of the instant petition. 7. Heard learned counsel at length and with the assistance rendered by them, gone through the impugned orders passed by the learned trial Court. 8. From the perusal of record annexed with the file, it reveals that petitioner is facing trial under section 363 RPC before Court below with the allegation that he has kidnapped respondent No.3 Shilpa Devi. During the course of trial before the court below, petitioner moved an application for releasing of Shilpa Devi from the custody of Incharge, Apna Ghar, Kachi Chawni Jammu. One application was also filed by Father of respondent No.3, Jeesa Ram, for custody of his daughter. Trial Court after inviting the objections, passed two orders on different dates by virtue of which application of husband of the petitioner was rejected vide order dated 12.07.2016 and application by the father was allowed vide order dated 06.10.2016. The court below categorically held that the prosecutrix was minor and has not attained the age of majority so she cannot be handed over to the petitioner. 9. Court below has categorically held in its orders that school leaving certificate of prosecutrix would reveal that her date of birth is 22.1.2000 and she went missing on 07.03.2016, so she was minor at that time. 10. The alleged marriage agreement executed between prosecutrix and petitioner is dated 08.03.2016; similarly the Arya Samaj certificate is also dated 08.03.2016. So as per date of birth entered in school certificate, the prosecutrix was minor at that time. The argument of counsel for petitioner that as per Doctor Certificate, which was given after conducting test of bones of different parts, the age of prosecutrix comes to 18 years, is not tenable. So as per date of birth entered in school certificate, the prosecutrix was minor at that time. The argument of counsel for petitioner that as per Doctor Certificate, which was given after conducting test of bones of different parts, the age of prosecutrix comes to 18 years, is not tenable. Hon’ble Apex court in case titled ‘State of MP Vs Anoop Singh’ (Cr .Appeal 442/2010 decided on 03.07.2015) has held as under:- “This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: “Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.” (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed: “In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same.” 14. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents.” 11. So at this stage school certificate of victim can be relied in view of above law; the victim was, thus, minor at the time of occurrence. Any consent given by minor is no consent under law. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents.” 11. So at this stage school certificate of victim can be relied in view of above law; the victim was, thus, minor at the time of occurrence. Any consent given by minor is no consent under law. In this way, custody of minor victim, cannot be given to petitioner, who is otherwise facing trial in criminal case of her kidnapping. The custody of a minor victim has to be given to father, who is termed as natural guardian under law. The laws cited by learned counsel for petitioner are not applicable in present case. Because facts of those cases were entirely different to that of present case. Thus, both the orders passed by Court below do not suffer from any infirmity of law. These are upheld accordingly. 9. Hence this petition is dismissed.