Allahabad High Court
Sandeep And Another vs State Of U.P. Thru. Addl. Chief Secy. ... on 6 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:687
Court No. - 28
Case :- APPLICATION U/S 482 No. - 10225 of 2023
Applicant :- Sandeep And Another
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt.
Counsel for Applicant :- Sachin Pandey,Satyendra Kumar Tiwari
Counsel for Opposite Party :- G. A.
Hon'ble Brij Raj Singh,J.
1. Heard learned counsel for the applicants as well as learned A.G.A. for the State.
2. The present application has been filed for quashing the criminal proceeding of S.T. No.910 of 2023 arising out of Case Crime No.0091 of 2023 U/s 363, 366, 504, 506 I.P.C. & Section 16/17 of P.O.C.S.O. Act, Police Station- Baldirai, District- Sultanpur as well as charge-sheet dated 26.05.2023.
3. It has been submitted by the learned counsel for the applicant that F.I.R. has been lodged by the father of the prosecutrix under Sections 363, 366, 504, 506 I.P.C. & Section 16/17 of P.O.C.S.O. Act as case crime no. 0091 of 2023 wherein allegation of enticing away the daughter of the informant has been made against the applicant no. 1.
4. It has further been submitted by the learned counsel for the applicants that the applicant no.1 and the applicant no. 2 have married together and they are living as husband and wife. In her statement recorded under Section 161 as well as before the court the applicant no. 2/prosecutrix has deposed that she married with the applicant no. 1 in a temple. It is submitted that out from their wedlock, one child, namely, Aryan was also born on 1.12.2023 and the said fact has been brought on record by filling a birth certificate of child as Annexrue No. SA-3 along with supplementary affidavit dated 10.5.2024.
5. It is submitted by the learned counsel for the applicants that as per the medical report the applicant no. 2/prosecutrix is 19 years of age. He lastly submitted that no useful purpose would be served in keeping the trial pending against the applicant no. 1, especially when the applicant no. 1 and applicant no. 2 are living as husband and wife peacefully without any hindrance. In support of his submission, learned counsel for the applicants relied upon a judgment dated 18.7.2023 of Hon'ble Supreme Court in the case of P. Yuvaprakash Vs. State represented by Inspector of Police (Criminal Appeal No. 1898 of 2023). The relevant para 19 of the judgment is quoted hereinbelow:-
"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examinatio of M, a certificate was issued stating "that the age of the said girl would be mo than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates, nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result c the ossification or bone test was the most authentic evidence, corroborated by examining doctor, PW-9."
6. In support of his submission learned counsel for the applicants also relied upon a judgment dated 6.11.2023 passed by the Co-ordinate Bench of this Court in Application U/S 482 No. 9813 of 2023 (Ram Kishor @ Kishor Vs. Sate of U.P. through Additional Chief Secretary Home Department Lko and another). It has been submitted that in the aforesaid case Ram Kishor @ Kishor (Supra) the offence under Section 3/4 of the POCSO Act was also registered along with Sections 363, 366, 506, 376 I.P.C. and after considering the statement of the victim under Sections 161 and 164 Cr.P.C. as well as ossification test of the victim, the Co-ordinate Bench of this Court quash the entire proceedings as well as charge sheet against the Ram Kishor @ Kishr, therefore, the case of the present applicant is also at par with the Ram Kishor @ Kishor. He further submitted that while entertaining the present application this Court has passed the order dated 18.10.2023 calling the private respondent/complainant and thereafter, this Court has passed the order dated 31.10.2024, which is quoted hereinbelow:-
"1. On 16th October, 2023, following order was passed:-
"1. Supplementary affidavit filed by learned counsel for the applicants is taken on record.
2. Heard learned counsel for the applicants as well as learned A.G.A. for the State.
3. The present application has been filed for quashing the criminal proceeding of S.T. No.910 of 2023 arising out of Case Crime No.0091 of 2023 U/s 363, 366, 504, 506 I.P.C. & Section 16/17 of P.O.C.S.O. Act, Police Station- Baldirai, District- Sultanpur as well as charge-sheet dated 26.05.2023.
4. Learned counsel for the applicants submits that father of victim was keen to settle her marriage with someone else but she was willing to enter into marriage with applicant no.1. He further submits that her radiological examination for determination of age was conducted, in which, it was found that she was aged about 19 years at the time of alleged incident and father of victim relied on Aadhar Card for determination of her age. He further submits that it is well settled by this court that Aadhar Card is not a valid proof of date of birth. He further submits that without considering the ossification test as well as statement of victim recorded U/s 161 as well as 164 Cr.P.C., charge-sheet was filed by Investigating Officer in the present case and trial was proceeded. It is further submitted that victim is now carrying pregnancy of 08 months and the trial of case in question is going on, deposition of victim is also fixed. It is, thus, submitted that indulgence of this Court is necessary.
5. List this case on 31.10.2023.
6. On the next date, private respondent/complainant shall appear in person before this Court."
2. In pursuance of the aforesaid direction, father of the victim is present along with Sub-Inspector Harish Chandra, Police Station- Baldirai, District- Sultanpur and the applicant as well as the victim are also present. Victim stated that she is residing with the applicant and now she is carrying a pregnancy of eight months.
3. List this case on 12th February, 2024."
7. It has been submitted by the learned counsel for the applicant that the case of present applicant is squarely covered by the order dated 6.1.2025 passed by this Court in the connected APPLICATION U/S 482 No. - 7162 of 2024. The operative portion of the order is quoted hereinbelow:-
"12. After going through the record, I find that applicant no. 2 has not supported the prosecution case in her statement recorded under Section 161 and 164 Cr.P.C. specifically stating that she married with applicant no.1 out of her free will and at that relevant point of time she was major. The very glaring fact, which has come on record is that they are living as husband and wife and a child also born from their wedlock, therefore, no fruitful purpose would be served in trying the applicant no.1 in the present case, who is husband of the applicant no. 2, therefore, the aforesaid criminal proceedings and charge-sheet are liable to be quashed.
13. The application is, accordingly, allowed.
14. The entire criminal proceedings of S.T. No. 398 of 2024, arising out of Case Crime No. 171 of 2023, under Section 363, 366 IPC & Section 16 and 17 of POCSO Act, P.S.-Baldirai, District-Sultanpur as well as charge sheet No. 01 dated 10.02.2024 including summoning order dated 04.04.2024 are quashed."
8. Learned A.G.A. opposed the submissions made by the learned counsel for the applicant and submitted that as per educational certificate, the victim was minor at the time of incident, therefore, the trial court has rightly summoned the applicant no. 1 and thus, he is liable to be tried.
9. Having heard learned counsel for the parties and perused the record, I see that the prosecutrix/applicant no. 2 has not supported the prosecution case in her statement recorded under Section 161 and 164 Cr.P.C, as she has deposed that she was in love with the applicant no. 1 and had solemnized marriage in a temple on 11.12.2022. She further deposed that she had child of three months in her womb. From the annexure SA- 3 annexed with the supplementary affidavit dated 10.5.2024 indicates that later on child, namely, Aryan born out from the wedlock of the applicants, therefore, at this juncture, it would not be fruitful to allow the trial court to conclude the trial against the applicant no. 1.
10. The application is, accordingly, allowed and the proceedings of theS.T. No.910 of 2023 arising out of Case Crime No.0091 of 2023 U/s 363, 366, 504, 506 I.P.C. & Section 16/17 of P.O.C.S.O. Act, Police Station- Baldirai, District- Sultanpur as well as charge-sheet dated 26.05.2023 are hereby quashed.
(Brij Raj Singh, J.)
Order Date :- 6.1.2025
Anuj Singh
