Heera Lal And Others vs State Of U.P.And Another on 24 May, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

?AFR

Court No. – 53

Case :- CRIMINAL REVISION No. – 588 of 2011

Revisionist :- Heera Lal And Others

Opposite Party :- State Of U.P.And Another

Counsel for Revisionist :- Ravindra Nath Rai,Ashok Kumar Rai

Counsel for Opposite Party :- Govt. Advocate,A.P.Tewari,S.S.Tripathi

Hon’ble Pratyush Kumar,J.

Heard Sri Ravindra Nath Rai, Advocate, learned counsel appearing for the revisionists and learned Government Advocate for the State.

The accused/revisionists by the instant revision questions the correctness of the order dated 14th January, 2011, whereby their discharge application was rejected by the trial Judge in S.T. No.433 of 2010 (State vs. Hira Lal and others) under sections 363, 366, 376, 506 I.P.C., Police Station Chauri Chaura, District Gorakhpur.

The grounds raised in the revision are that the prosecutrix and revisionist no.4 were major, they married with their own free will. From the medical evidence, the prosecutrix was found to be major, no offence was made out against the revisionists. The impugned order is bad in law.

 On behalf of opposite party no.2, Sri A.P.Tiwari, Advocate, submits that the incident of kidnapping had occurred in the month of December, 2006. Medical examination was conducted on 5th August, 2008 and on that day, the prosecutrix was opined to be 19 years of age. Thus, submission of Sri Tiwari is that on the date of incident, she was below 18 years of age. He further submits that defence himself admit that prosecutrix had gone with revisionist no.4 and they had sexual intercourse, thus, according to him, all the charges are prima-facie made out and the impugned order is perfectly valid in law.

Sri Ravindra Nath Rai, Advocate, in support of the revision after canvassing the aforesaid grounds had referred the following cases:-

Chandan vs. State of U.P. and another, 2013(8) ADJ 642, he has placed reliance on Para 14 of the report which is quoted here-in-below:-

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“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.”

He submits that on the basis of above, proceedings of the case were quashed.

Sunil @ Lala vs. State of U.P. others, 2011 (72) ACC 604, he has placed reliance on Para 3 of the report, which is quoted here-in-below:-

“3. Having heard learned Counsel for the parties and having gone through the record, we find that according to the medical opinion the girl has been found to be 17 years and there should be variation of two years on either side and since the girl is having a child out of the wedlock of husband and they are living peacefully and happily, no useful purpose would be served in annulling the marriage at this stage when the Court finds that the girl is major and she was having authority under law to contract the marriage. Marriage having been solemnized at the behest of the major girl, it cannot be said that there was any illegality in contracting the marriage. Since both the husband and wife are major, therefore, no useful purpose would be served in prolonging the criminal proceedings any further on the basis of the F.I.R. lodged by the complainant. The law in this regard has been settled by the Apex Court in the case of Lata Singh v. State of U.P. and another, and we are also in agreement with the legal proposition laid down in the above case.”

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Before examining the merits of the case, I would like to place on record the relevant facts.

That on 7th June, 2008 at Police Station Chauri Chaura, on the basis of written statement application under section 156(3) Cr.P.C. moved by opposite party no.2, the present matter was registered wherein opposite party no.2 had reported that her daughter prosecutrix aged 17 years in the first week of December 2006 had left the house for market and she did not come back. Thereafter, she had stated that she came to know that revisionist no.2 took her away for immoral purposes. After investigation, the revisionists were charge-sheeted. On 5th August, 2008, the prosecutrix were medically examined and opined to be 19 years of age. Her statement under section 164 Cr.P.C. was recorded wherein she had claimed herself to be 22 years and further stated that she had left the house with Anil, on her own accord she has solemnized marriage with him. Revisionist nos.2 and 3 had nothing to do with this matter. She had given birth to a male child. She was not ill treated by anyone.

The discharge application was rejected by the court below, on the basis of law laid down in Prabhunath Yadav vs. State of U.P., 2008 (60) ACC, 59, P.Vijayan Vs. State of Kerala, 2010 (2) J.I.C, 128 (S.C.) and Ripudaman @ Rai Saheb  and others vs. State of U.P., 2010 (3) J.I.C., 187, the court below has observed that at the stage of framing of charge, the court was not required to see whether evidence available on record is sufficient to sustain the conviction. The Court is only required to see whether there was material to have grave suspicion that accused had committed alleged offence or not. He has further observed that at this stage, evidence should not be minutely scrutinized. Thereafter the court below has observed that marriage of the prosecutrix with revisionist no.4, their living together were not disputed. The only part disputed was whether she was kidnapped or had gone with her own free will. After deducting years from the incident and medical examination, he has held that she was minor at that moment, therefore, he has rejected the application and directed the charges to be framed.

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The case law referred by the court below still holds the field, it has not even disputed by the revisionists, on behalf of the revisionists, it has been contended that in the case of Sunil @ Lala (supra), the Division Bench of this Court has permitted variation of two years on either side, therefore, benefit of doubt would go to the accused and treating the prosecutrix to be major, the revision should be allowed and prosecution should be dropped.

The age of the prosecutrix has to be determined in accordance with provisions contained in Rule 12 of the Juvenile Justice Rules, 2007 and the Hon’ble Apex Court in the case of Jarnail Singh vs. State of Haryana, 2013 (30 SCC (Cr.I.), 302 has held that in such cases, no variation should be permitted. Thus, as things stand today, there is material enough to have grave suspicion whether on the date of occurrence the prosecutrix was major or minor and the result of the trial would be dependent upon it, therefore, I do not think the learned trial Judge has committed any illegality in rejecting the discharge application.

The revision is without substance, hence, dismissed.

Interim order, if any, stands vacated.

Order Date :- 24.5.2017

SKD

 

 

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