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IN THE HIGH COURT OF ALLAHABAD
SAMIT GOPAL, J.
Suraj Kumar - Applicant
Versus
State of U.P. and Others - Opposite Parties
Application U/S 482 No. 12595 of 2023
Decided On : 11-04-2023
Criminal Procedure Code, 1973 – Section 482, 161, 164 – Indian Penal Code, 1860 - Sections 363, 366, 376 - Protection of Children from Sexual Offences Act, 2012– Section 5/6 - Quash charge-sheet - Lured daughter and enticed her away - Major girl - Got married with each other - Prayed that Hon'ble Court may graciously be pleased to quash charge-sheet – Statement of victim states to have gone with applicant out of her own sweet-will and stayed with him. [Para 12]
Finding of the Court: Victim was a major girl at time of incident as has come out in ossification test which has been recorded in orders in habeas corpus writ petition filed before this Court - In statement of victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. she states to have gone with applicant out of her own sweet-will and stayed with him - Paragraph 3 of affidavit of opposite party no.3 / victim states that applicant and victim have married each other and want to live together as husband and wife - Orders passed in the habeas corpus writ petition, affidavit of opposite party no.3 / victim filed today in Court, age of the victim as has come from ossification test and opinion passed on it, statement of victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C - Entire proceedings of case are hereby quashed.
Result: Petition allowed.
JUDGMENT :
1. List revised.
2. An affidavit and Vakalatnama filed by Sri Suresh Kumar Gupta, Advocate on behalf of the opposite party no.3 is taken on record.
3. Heard Sri Ajay Kumar Mishra, learned counsel for the applicant, Sri Suresh Kumar Gupta, learned counsel for the opposite party no.3 and Sri S.B. Maurya, learned counsel for the State and perused the material brought on record.
4. The present application U/S 482 Cr.P.C. has been filed by the applicant-Suraj Kumar with the following prayer:-
It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of the aforesaid case and / or to pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case, so that justice be done."
5. The facts in the present case are that a first information report was lodged on 15.07.2021 as Case Crime No. 0187 of 2021, under Sections 363, 366 I.P.C., Police Station Nandganj, District Ghazipur by the opposite party no.2 Smt. Mamta against the applicant and Gorakh alleging therein that her daughter aged about 17 years had gone to visit her maternal grand-father's place around 15 days back but on 13.07.2021 at about 4 am Suraj and his friend Gorakh lured her daughter and enticed her away. She was searched a lot but could not be traced. When they went to the house of the boys to ask about the girl they were chased out. An application is being given on which appropriate action be taken, on the basis of which the first information report was lodged against the applicant and Gorakh. The matter was investigated after which a charge-sheet was submitted against the applicant under Sections 363, 366, 376 I.P.C. and Section 5/6 POCSO Act. In so far as Gorakh the other person named in the first information report is concerned, he was not charge-sheeted and his name finds place in column 12 of the charge-sheet as the person not charge-sheeted. On the charge-sheet the trial court vide its order dated 09.09.2021 took cognizance and summoned the applicant to face trial. In the meantime, a habeas corpus petition being Habeas Corpus Writ Petition No. 298 of 2022 (Pooja vs. State of U.P. and 4 others) was filed on behalf of Suraj Kumar claiming custody of the victim describing her as his wife who was stated to be in illegal confinement of her parents Smt. Mamta and Sri Pramod Kumar. A co-ordinate Bench of this Court vide order dated 28.04.2022 directed the C.M.O. / C.J.M., Ghazipur to hold ossification test of the victim for the ascertainment of her age as there was nothing on record to indicate her age. The said order is annexure-4 to the affidavit which reads as under:-
This habeas corpus writ petition has been filed on behalf of Suraj Kumar claiming the custody of his wife-Pooja who is illegally confinement of her parents Smt. Mamta and Sri Pramod Kumar.
Contention raised by learned counsel for the petitioner is that the present F.I.R. was registered on 15.07.2021 by one Mamta-mother of the victim against Suraj-husband and Gorakh, at about 15 days back the named accused persons have enticed away the girl. The girl was eventually recovered on 18.07.2021 from the custody of Suraj and she was put for statements under sections 161 Cr.P.C. and 164 Cr.P.C. In statement of 164 Cr.P.C. she states that she is in affair wi
Being a major girl, she has every right to decide her future path.
Consent of a minor has no consequence for offences under POCSO Act as well as Section 375 I.P.C.
Victims' consent and absence of coercion voids charges of kidnapping and sexual assault if sufficient evidence of mutual marriage exists, emphasizing personal liberties and maturity under statutory l....
The court established that in the absence of reliable age documentation, ossification tests can be utilized to determine the age of individuals in cases involving alleged abduction or elopement, part....
The prosecution must clearly prove a victim's minority in POCSO cases, requiring authenticated age documentation; mere reliance on school records is insufficient.
where it was found on enquiry that educational certificates were fabricated or manipulated, the Court could discard the date of birth as reflected therein.
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