Allahabad High Court
Matthu Kahar And Another vs State Of U.P.And Another on 7 August, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:159297
Court No. - 84
Case :- CRIMINAL APPEAL No. - 2531 of 2021
Appellant :- Matthu Kahar And Another
Respondent :- State Of U.P.And Another
Counsel for Appellant :- Satya Prakash Singh,Avadhesh Pratap Singh,Gunjan Sharma,Rajesh Kumar Dubey,Ramdeo Pathak
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the appellants and learned A.G.A.
No one has put in appearance on behalf of respondent no.2 despite of sufficient service.
This is an appeal under Section 14A(1) of the SC/ST Act against the judgment and order dated 27.10.2020 passed by the Exclusive Special Judge (S.C./S.T. Act), Basti in Special Session Trial No. 17/2018, (State Vs. Matthu Kahar & another), under Sections 376(D), 506, 120B I.P.C. and 3(2) (V) of S.C./S.T. Act, Police Station Nagar, District Basti.
By impugned order, the trial was found triable by POCSO court so the order was made to send the letter to the District Judge, Basti to transfer Special Session Trial No.17/ 2018 pending in the court of Special Judge SC/ST Act to the Court of POCSO Act.
As per facts of the case, an FIR was lodged on 31.01.2018 regarding the incident of the same date by respondent no.2 Ram Sahay against both the appellants that Ram Sahay was a scheduled caste person. On 31.01.2018 at 3:00 p.m., when his 15 years old minor daughter was going towards the field for defecation in the mid way both the appellants picked her up, took her in the moonj and raped her by stuffing cloth in her mouth. They also gave her and for her family members a threat of life if the incident is disclosed to others.
As per FIR, the age of the victim was shown to be 15 years. In her statement under Section 161 Cr.P.C., in the ration card of the first informant and in the Aadhaar Card, the victim was shown to be minor. Though in her statement under Section 164 Cr.P.C., the victim disclosed herself to be 20 years of age on the date of incident. The investigating officer on the basis of certificate issued by the Principal of the Prathmik Vidyalaya Maharipur, wherein the date of birth of the victim was mentioned as 10.04.1997 and after recording the statement of the Principal, finding the victim to be 20 years 9 months and 21 days old on the date of incident dated 31.01.2018 filed charge-sheet under Sections 376 (D), 506, 120B IPC and 3(2) (V) of SC/ST Act only. Though FIR was registered under sections of POCSO also but charge-sheet was not filed under sections of POCSO Act. On the basis of this charge-sheet, after cognizance, the case was being tried by SC/ST Court but after framing of charge, recording of prosecution evidence and the statement of accused persons under Section 313 Cr.P.C. at the stage of arguments on the application of learned Special Prosecuting Officer the Exclusive Special Judge (SC/ST Act) Basti passed the impugned order dated 27.10.2020 and found the file to be triable by the POCSO Court. The court opined that on the basis of the evidence on record that the investigating officer in parcha no.2 after recording the statement of Principal of the school concerned, on the basis of the certificate issued Principal Prathmik Vidyalaya Maharipur found the victim major. The investigating officer did not even wait to get the x-ray report regarding the age determination of the victim. The investigating officer also recorded the statements of the doctors, who proved the medical report and the radiological report of the victim and disclosed the victim to be 16 years of age on the date of incident. The investigating officer, while filing charge-sheet did not even mention the Aadhaar Card, ration card and the report of the medical board filed on the basis of the radiological report that the girl was minor on the date of incident and arbitrarily filed charge-sheet eloping sections of POCSO Act.
Against this order dated 27.10.2020 the present appeal has been filed and it is submitted that there was the certificate of the Prathmik Vidyalaya Maharipur issued by its Principal showing the date of birth of the victim to be 10.04.1997 and as per the medical report the age of the victim could not be determined. The Exclusive Special Judge (SC/ST Act) has illegally and against the evidence on record has fixed the age of the victim to be 16 years on the date of incident and an order was made to send the file to the POCSO Court, while neither the charge-sheet had been filed under the POCSO Act, nor the charge was framed under Sections of POCSO Act. At the stage of arguments by determining the age of the victim and holding her minor is against the law. The victim in her statement under Section 164 Cr.P.C. has also disclosed herself to be 20 years old on the date of incident and in the trial court as PW-2 the victim again claims herself to be of 20 years, hence, the prayer is made to set aside the order dated 27.10.2020.
Learned A.G.A. submitted that the impugned order is a detailed and well discussed order, which has been passed on the basis of evidence on record, hence, the prayer is made to dismiss the appeal.
From the perusal of the record, it is found that FIR was lodged under Sections 376 (D), 506 I.P.C., 3(1) (1) of SC/ST Act and 5/6 of POCSO Act. The investigating officer on the basis of certificate issued by the Prathmik Vidyalaya Maharipur and recording the statement of its Principal, on the basis of date of birth mentioned in the certificate to be 10.04.1997 found the victim to be 20 years 9 months and 21 days old on the date of incident. The investigating officer has mentioned Aadhaar Card and ration card of the first informant in the case diary. He also recorded the statement of C.M.O. disclosing the victim to be minor on the date of incident, but without considering the statement of C.M.O., who was a part of the medical board determining the age of the victim and without considering other documents, radiological report, report of the medical board, filed charge-sheet under Sections 376 (D), 506, 120B IPC and 3(2) (V) of SC/ST Act against the appellants and co-accused person. In the charge-sheet in column 23 the investigating officer has also mentioned the year of the birth of the victim as 2003 which again shows the victim to be minor on the date of incident, 31.01.2018
After filing charge-sheet under abovementioned sections, taking cognizance, framing of charge and recording of the whole evidence of the parties at the time of final arguments the impugned order was passed by the trial court on the basis of the application moved by the learned Special Prosecuting Officer. It is noteworthy that the certificate, on the basis of which, the investigating officer fixed the age of the victim to be 20 years 9 months and 21 days on the date of incident was neither produced by the prosecution nor proved by the concerned Principal in the trial court, rather in the trial court the medical report, X-ray report and the report of C.M.O. were placed before the court, wherein the medical report was proved by the doctor Shiba Asraf Khan, who appeared in the trial court as PW-6. In her medical report it was mentioned that "in the x-ray wrist epiphysis around joints are in process of fusion. In x-ray of right elbow and right knee all epiphysis around joint are fused." In this report itself, the doctor has mentioned the age of the victim to be 12 years. Though in the final opinion this doctor has mentioned that final opinion could not be given, but it is not the opinion regarding the age of the victim. It is an opinion regarding the alleged rape committed with the victim. On the basis of radiological report which is mentioned in the report paper no.3A/ 47 of the trial court record, it is clearly mentioned that ''in the x-ray right wrist epiphysis around joints are in process of fusion.'' On the basis of this radiological report by the medical board of four doctors including Chief Medical Officer, Basti, a report was submitted and the age of the victim was determined to be 16 years on the date of incident. This report has been proved by the C.M.O. PW-10 in the trial court as Exhibit Ka-10. It is also noteworthy that except the medical of the victim there is nothing on record to prove the victim minor on the date of incident. From the defence side also, neither the school certificate of the victim has been produced, nor the principal of school concerned has been produced. Perhaps, it was so because no charge was framed under POCSO Act but as on the basis of the evidence on the record up to the stage of arguments the trial court found the victim to be minor on the date of incident, so in the absence of any other evidence on record at that stage the trial court was justified in passing the impugned order and holding the victim minor on the date of incident. It is true that as the charge was not framed under Sections of POCSO Act, so accused persons were not needed to file the documents regarding the minority of the victim. As the file has been transferred to the POCSO Court vide impugned order dated 27.10.2020, now in the POCSO Court both the parties would have an opportunity after framing of fresh charge, to give fresh evidence in favour or against the minority of the victim on the date of incident. After that evidence only the age of the victim would be decided finally on the date of incident.
In the opinion of the Court, the impugned order passed by the trial court is found to be a well discussed, well founded order based on the evidence on record which does not suffer any illegality. This order need not be interfered at this stage.
The appeal is hereby dismissed and the order dated 27.10.2020 passed by the Exclusive Special Judge (S.C./S.T. Act), Basti is confirmed.
Order Date :- 7.8.2023
Radhika
