Ram Chandra vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 25703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:60726
 
Reserved on 25.8.2023
 
Delivered on 21.9.2023
 
Court No. - 12
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 6 of 2023
 

 
Appellant :- Ram Chandra
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
 
Counsel for Appellant :- Krishna Kumar Singh
 
Counsel for Respondent :- G.A.,Salik Ram Yadav,Seema Kashyap,Smriti
 

 
Hon'ble Rajeev Singh,J.

1. Heard learned counsel for the appellant, learned counsel for the private respondent as well as learned A.G.A. for the State and perused the record.

2. The present appeal is preferred against the judgment and order dated 25.11.2022 in S.S.T. No.1240 of 2020 under Section 376, 323, 504, 506 I.P.C. and Section 5(J)(II)/6 of POCSO Act arisen from Case Crime No.271/2020, Police Station Kachchauna, District Hardoi by which the private respondent was acquitted by the learned court below in utter violation of legal provisions.

3. Learned counsel for the appellant submits that victim was minor, student of Class-X at the time of incident, she was enticed by the private respondent and provided her new Mobile alongwith the S.I.M. (Mobile No.9648928854), thereafter, he made physical relation with the victim and when she conceived, then he assured to solemnize marriage. On 20.2.2020, again she was called by the private respondent and despite knowing this fact that she was carrying pregnancy, he made physical relation and told that he will not marry with her and threat was also given, then she started crying, after hearing the cry of victim, parents of the private respondent reached there and given life threat, then victim came to her house and reported the same to the applicant, then applicant alongwith his daughter (victim) went to the police station and made complaint in place of lodging First Information Report, police called the accused and his family members where the private respondent and his family members tried to resolve the issue by giving assurance of marriage and 25.3.2020 was fixed for marriage. As all the arrangement of marriage were completed and the invitation were circulated then on 20.3.2020 appellant was called by the private respondent and his family members and asked for a four wheeler and cash of Rs.3,00,000/- when appellant expressed his inability for the same then he was abused by them and told that they will not perform the marriage with the victim, thereafter, F.I.R. in question was registered. During the course of investigation, statement of victim were recorded under Section 161 as well as 164 Cr.P.C. and she was also medically examined and her radiological age was also determined in which, she was found 17 years and also carrying pregnancy of 18 weeks. Charge sheet was filed against private respondent and the names of the other accused persons were dropped. The cognizance was taken by the Special Court and thereafter, charge was framed against private respondent for the offence under Section 376, 323, 504, 506 I.P.C. and Section 5(J)(II)/6 of POCSO Act

4. Learned counsel for the appellant submits that victim was produced as P.W.1 but learned District Government Counsel conducted the trial in the most negligent manner as even the examination-in-chief of victim was not recorded properly and the trial court also ignored the same as it was obligatory on the trial court to ensure that statement of the victim was to be recorded in proper manner but the learned trial court in only one sentence her deposition was recorded that she made her statement before the learned Magistrate under Section 164 Cr.P.C. He also submits that as the father of the private respondent is Lekhpal and is very influential, therefore, the trial of the case in question was not conducted properly by the learned District Government counsel. He further submits that victim in her cross examination has categorically supported the prosecution version and deposed that on 23.2.2020, the complaint was made to the police where the private respondent and her family members were called and only with the intention to cover up his crime, they agreed for marriage and the date of marriage was fixed on 25.3.2023, thereafter, the invitation cards were distributed and on 20.3.2020, private respondent and his family members denied for marriage, and at the time of recording her statement, she was having 11 month daughter, she also stated that at the time of incident, she was appearing in Class-Xth examination and her date of birth is 6.7.2004. P.W.2 also stated before the trial court that her minor daughter was enticed by the private respondent and he made physical relations and this fact came into his knowledge when she was carrying pregnancy of four months and also stated that complaint was made to the police on 23.2.2020 and thereafter, on 25.2.2020 private respondent and his family members consented for marriage with the victim. He also stated that later on, private respondent denied to perform marriage and now victim have birth to a girl child of the accused/private respondent, and life threat was also given to them as father of the private respondent is Lekhpal and the private respondent is also selected for the post of Assistant Teacher.

5. Learned counsel for the applicant further submits that P.W.3, Shivraj Singh Patel, Principal of Janki Prasad Inter College, Kachchauna, Hardoi was examined and he deposed that date of birth victim is 6.7.2004 as per the school record as well as in Class-X record. P.W.4, mother of the victim was also examined and cross examined and she deposed the story as stated by the appellant as well as victim. P.W.7, Arun Kumar was examined and in his deposition, he had categorically supported the prosecution version and stated that victim was minor at the time of incident and at the time of medico legal examination, she was carrying pregnancy of eighteen weeks and two days. P.W.8, Investigating officer also supported the prosecution story and stated that he conducted the investigation and submitted charge sheet.

6. Learned counsel for the appellant submits that in case date of birth of the victim which is relied by the private respondent is 2.2.2003 is correct, even then she was minor at the time of incident as she was aged about 17 years 18 days. He also submits that defence witness, Priyanaka Verma (in-charge Head Master) appear for proving the date of birth of the victim, i.e., 2.2.2003 as per her primary school record but she expressed in her deposition there are several interpolation/scorrections in the description of S.R. Register by way of cutting and painting of whitener and learned court below ignored the provisions of Section 29 of the POCSO Act and given benefits of two years to the accused on the basis of radiological age of victim which was 17 years, as it was obligatory on the part of the court below to not to presume victim as major as radiological age was relied by the prosecution or by the private respondent and in both the cases, victim was minor and she comes into the category of Section 2(d) of POCSO Act, in which, child is defined.

7. He further submits that statement under Section 313 Cr.P.C. of accused was also recorded, in which, he stated that parents of the victim solemnize his marriage with the victim without informing to his parents and victim was frequently residing at his house being wife but prior to the date of marriage, F.I.R. in question was lodged by the appellant. He further submits that marriage of the private respondent was allegedly solemnize with his daughter is not mentioned in anywhere from question no.1 to 12 and rest of the questions are replied in vague minor.

8. Learned counsel for the appellant submits that as the learned trial court presumed that victim was major at the time of incident and she made physical relations with the private respondent on her own and also observed that private respondent is accepted the victim as his wife and learned trial court presume that victim as well as her parents in their statement stated that victim and the accused/private respondent are married with each other, therefore, the prosecution story is doubtful and the private respondent was acquitted.

9. Learned counsel for the appellant further submits that on 25.7.2023 victim as well as private respondent were present before this Court and private respondent inform that he will perform marriage with the prosecutrix within one month and keep her as his wife and also maintain their girl child and on 16.6.2023 one affidavit was filed by the private respondent, in which, he stated that private respondent contacted to the appellant for marriage of his daughter but he told to him for deposition of Rs.2,00,000/- in the name of victim as well her girl child and in para 7, he has also showed permission for allowing him to keep the victim alongwith their minor child. He further submits that this is the best example of allurement of adolescent girl by the such person like private respondent and making physical relation with a minor daughter of the appellant and learned trial court ignored all these facts, therefore, appeal is liable to be allowed.

10. Learned counsel for the respondent vehemently opposed the prayer of the appellant and submits that there is no illegality in the judgment passed by the court below. As specific question was asked from him that in case the date of birth relied by the private respondent, i.e., 2.2.2003 as correct then the victim is minor or not then she conceded this fact and admitted that on the basis of both the date of birth, the victim was minor at the time of incident but she submitted that learned court below has rightly given relaxation of two years and treated the victim as major. She also submitted that marriage of private respondent was solemnized by the appellant with his daughter without informing to his parents but she is unable to show the date of marriage of the victim as well as private respondent which was solemnize by the appellant.

11. Learned A.G.A. does not dispute this fact that in case of POCSO, the age is to be determine as per the provision of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and also conceded this fact that Section 29 of POCSO Act, clearly states that in case a person is prosecuted for committing of any offence of POCSO Act then Special Court can presume that such person committed the offence as the cases may be unless proved contrary by the accused persons and in the present case, learned court below has wrongly given the relaxation of two years of age to the accused/private respondent and also presumed that marriage of the victim was already solemnized with the private respondent.

12. Considering the submissions of learned counsel for the parties, lower court record and affidavit of private respondent, it is evident from the record that at the time of incident victim was appearing for Class-Xth examination and as per her High School document, her date of birth is 6.7.2004 and this was also proved by P.W.3, Shivraj Singh Patel, Principal of Janki Prasad Inter College, Kachchauna, Hardoi, as the accused relied on the documents of Primary School Kachchauna, Hardoi and in his defence, D.W.1, Priynaka Verma, in-charge Head Master, Primary School, Kachchauna, Hardoi in her statement admitted that there is interpolation in the S.R. Register by getting and putting whitener and also stated that as per her record, the date of birth of the victim is 2.2.2003. As in case, the date of birth relied by the private respondent is treated as true, even then victim is less than 18 years but the learned court below had given the relaxation of two years which is illegal and against the verdict of Apex Court given in the case of Jarnail Singh Vs. State of Haryana reported in 2013 7 SCC 263. It is also evident that the court below has wrongly presume that appellant as well as his wife and daughter (victim) has stated that victim had already solemnized marriage with the private respondent, the victim as well as private respondent made physical relations by enjoying their matrimonial life is against the evidences placed by the prosecution, as the learned trial court is under obligation to ensure the compliance of Section 29 of POCSO Act, 2012, as learned trial court was negligent during the course of recording examination in chief of the prosecutrix. In such circumstances, when the victim is minor on the basis of her School Leaving Certificate and she has supported the prosecution version, as the victim delivered a girl child and private respondent has also given affidavit before this Court for assurance of marriage, as he never disowned the child of the victim, therefore, the impugned judgment is liable to be set aside and the matter is being remanded to the court trial court.

13. In view of the above, the present appeal is allowed and the judgment and order dated 25.11.2022 passed by the trial court in S.S.T. No.1240 of 2020 under Section 376, 323, 504, 506 I.P.C. and Section 5(J)(II)/6 of POCSO Act arisen from Case Crime No.271/2020, Police Station Kachchauna, District Hardoi is set aside and case is remanded back to trial court.

14. Trial court is directed to recall the P.W.1 (victim) and re-examine her and also provide liberty to the accused to cross examine and decide the trial of case expeditiously in accordance with law.

15. Office is directed to communicate this judgment to the District and Sessions Judge, Hardoi and trial court for compliance of this order within four week from today.

16. Private respondent/accused, Manish Kumar S/o Rajendra is directed to appear before trial court within two weeks from today and furnish personal bond & two sureties of amounting Rs.50,000/- each and cooperate in conclusion of trial.

Order Date :- 21.9.2023

Gaurav/-