Allahabad High Court
Ashwani vs State Of U.P. And 3 Others on 22 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:92631 Court No. - 77 Case :- CRIMINAL REVISION No. - 5437 of 2023 Revisionist :- Ashwani Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- U.C. Chaturvedi Counsel for Opposite Party :- G.A.,Mohd. Akbar Shah Alam Khan Hon'ble Rajeev Misra,J.
Heard Mr. U.C. Chaturvedi, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Mohd. Akbar Shah Alam Khan, the learned counsel representing opposite party 2.
Perused the record.
This criminal revision has been filed challenging the order dated 06.10.2022, passed by Special Additional Sessions Judge (Pocso Act), Muzaffar Nagar in Sessions Case Pocso No.791 of 2020 (State Vs. Naurang and others), arising out of Case Crime No.317 of 2019, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Nai Mandi, district Muzaffar Nagar, whereby court below in exercise of jurisdiction under Section 228 CrPC has framed charges against accused-revisionist under Sections 363, 366, 376 IPC and Sections 3/4 Pocso Act.
Record shows that in respect of an incident, which is alleged to have occurred on 19.06.2019, a delayed first information report dated 22.06.2019 was lodged by first informant, namely, Ankit (opposite party 2 herein) and was registered as Case Crime No.0317 of 2019, under Sections 363, 366 IPC, police station Nai Mandi, district Muzaffar Nagar. In the aforesaid report, five persons, namely, Ashwani, Anup, Shimla, Neha and Naurang have been nominated as named accused.
The gravamen of the allegations made in the first information report dated 22.06.2019 is to the effect that named accused enticed away the minor daughter of the first informant i.e. the prosecutrix, namely, 'X' aged about 15 years.
After above mentioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 03.08.2019. Subsequent to above, the statement of the prosecutrix was recorded under Section 161 CrPC on 03.08.2019, copy of the same is on record as Annexure-'6' at page 70 of the paper book. The prosecutrix in her aforesaid statement has not supported the first information report. She has however detailed the manner of occurrence. As per the said statement she appears to be a consenting party. She has not stated that her modesty was dislodged either deliberately or consensually. Thereafter, the second statement of the prosecutrix (Bayan Mazid) was recorded on 08.08.2019, wherein also she has rejoined her previous statement recorded on 08.08.2019. Subsequent to above, the prosecutrix was requested for her internal medical examination. No external injuries were found on the body of the prosecutrix at the time of the medical examination. After aforementioned exercise was undertaken, the statement of the prosecutrix was recorded under Section 164 CrPC on 05.08.2019, copy of which is on record as Annexure-'8' to the affidavit at page 80 of the paper book. In her aforesaid statement, the prosecutrix has rejoined her previous statements recorded under Section 161 CrPC. She has again stated that no criminality was committed against her i.e. her modesty was not dislodged.
The prosecutrix was thereafter requested to undergo internal medical examination on 08.08.2019 but the same was refused by her in writing, which is explicit from the recital occurring in the document occurring at page 84 of the paper book. As per the medical opinion, the prosecutrix is said to be aged 18 years. On the record, there is also a certificate issued by Head Master of Junior High School Silajuddi, Sadar, Muzaffar Nagar. As per the said certificate, the prosecutrix had studied up to class VII inn the aforesaid institution and her date of birth recorded in the records of said institution is 08.03.2001. As such, on the date of occurrence i.e. 19.06.2019 the prosecutrix was aged about (08.03.2001 - 19.06.2019) i.e. 18 years and 02 months approx.
Investigating Officer also recorded the statement of first informant and other witnesses under Section 161 CrPC. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of all the named accused and some not named accused is established in the crime in question. He, accordingly submitted the police report dated 17.01.2020 in terms of Section 173 (2) CrPC (charge-sheet), whereby the accused-revisionist Ashwani has been charge-sheeted under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, accused Kunal and Ajay under Sections 363, 366 and 368 IPC and accused Naurang, Shimla, Anup and Neha under Sections 363/366 IPC.
Learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and therefore liable to be set aside by this Court. He contends that as per the statement of the prosecutrix recorded under Section 161 CrPC, followed by her second statement under Section 161 CrPC (Bayan Mazid), her statement recorded under Section 164 CrPC as well as absence of any medical report to establish commission of rape upon prosecutrix, the charges framed against revisionist under Section 376 IPC and Section 3/4 Pocso Act are manifestly illegal. Once the prosecutrix in her statements referred to above has not alleged that her modesty was deliberately or forcibly dislodged by the revisionist or she indulged in sexual consensual intercourse, no offence under Section 376 IPC or Section 3/4 Pocso Act can be said to be made out against revisionist. He further submits that in order to bring in the criminality alleged against the accused-revisionist within the purview of the Pocso Act, it is imperative that the prosecutrix or the victim must be below 18 years of age. The certificate issued by the Head Master of the institution concerned, which is on record at page 96 of the paper book, it has been clearly mentioned that the prosecutrix studied in the said institution upto Class VIIth and the date of birth of the prosecutrix as recorded in the school records is 08.03.2001. The occurrence giving rise to the present criminal proceedings is alleged to have occurred on 19.06.2019. As such, the prosecutrix was aged about 18 years and approximately 03 months on the date of occurrence. Similar is the medical opinion regarding age of the prosecutrix. According to the learned counsel for revisionist in view of above, the court below was therefore to duty bound to first determine the age/date of birth of the prosecutrix and in case the prosecutrix fall within the term "child" as per the Pocso Act, it should have proceeded. The failure on the part of the court below to undertake any such exercise as noted above amounts to failure on the part of court below to exercise the jurisdiction vested in it.
Per contra, the learned A.G.A. and the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal. Consequently, the same is not liable to be interfered with by this Court. They submit that charges have been framed against revisionist on the basis of material accompanying the police report submitted by Investigating Officer under Section 173 (2) CrPC. As such, it cannot be said that there is no material accompanying the police report to support the charges so framed against revisionist. Even otherwise, the court while framing of charge has to exercise its own independent discretion inasmuch as, the court is not bound by the opinion given by Investigating Officer. They, therefore contend that in the facts and circumstances of the case, the framing of charge against accused-revisionist under Section 376 IPC and Section 4 Pocso Act cannot be said to be illegal or in excess of jurisdiction. As such, the court below has not committed any illegality in passing the order impugned. It is thus urged that no interference is warranted by this Court in present criminal revision.
Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2 and upon perusal of record this Court finds that the revisionist was charge-sheeted vide police report dated 17.01.2020 under Section 363, 366, 376 IPC and Section 3/4 Pocso Act, primarily on the ground that as per the recital in the first information report the prosecutrix is a minor girl aged about 15 years. There is a certificate on the record given by the Head Master of the institution concerned where the prosecutrix had studied up to Class-VII. As per the said certificate, the date of birth of the prosecutrix recorded in the school record is 08.03.2001. The occurrence giving rise to present criminal proceeding is alleged to have occurred on 19.06.2019. Prima facie, the prosecutrix was aged about 18 years and approximately four months on the date of occurrence. The age of a child is to be inferred/decided as per the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015. For ready reference, the same is reproduced herein-under :
"94. Presumption and determination of age. ? (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining ?
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
Upon perusal of the aforesaid provision, it is evident that the date of birth of the prosecutrix which has emerged from the document occurring at page 96 of the paper book i.e. certificate issued by the Head Master of the institution concerned cannot be recognized either under Section 94(i) or under Section 94-(2) of Act, 2015. However, in the charge-sheet there is no whisper of any said document on the basis of which the age of the prosecutrix was concluded by Investigating Officer to be as 15 years. Therefore, the court finds that the charge under Section 3/4 of Pocso Act has been framed against the revision without deciding the date of birth of the prosecutrix and the age of the prosecutrix on the date of occurrence.
'Rape' has been defined in Section 375 IPC. In order to bring home a charge under Section 376 IPC, either of the conditions provided in Section 375 IPC should stand satisfied. Accordingly, Section 375 IPC is extracted herein-below :
"Section 375. Rape.--
A man is said to commit "rape" if he ---
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent."
When the statement of the prosecutrix recorded under Section 161 CrPC, her second statement under Section 161 CrPC (Bayan Mazid) as well as her statement under Section 164 CrPC are examined as a whole, it is apparent that in none of the aforesaid statements the prosecutrix has alleged that her modesty was dislodged by committing penetrative sexual assault deliberately/forcibly or otherwise. To the contrary, the prosecutrix has consistently stated that no illegal act was committed upon her. Admittedly, an offence of rape is personal to the prosecutrix. Once the prosecutrix herself has not alleged that her modesty was dislodged by any such act which is covered under Clause (a), (b), (c), and (d) of Section 375 IPC therefore, it cannot be said that rape was committed upon the prosecutrix. Similarly, in order to bring home the charge under Section 3/4 of Pocso Act there must be evidence to show that penetrative sexual assault was committed upon the prosecutrix deliberately or forcibly or upon consent of the prosecutrix who is a child within the meaning of Pocso Act. In the absence of any such material it would not be prudent for a court to frame charge under Section 3/4 Pocso Act.
Further, upon perusal of record this Court finds that court below has framed charge under Section 376 IPC on an erroneous assumption drawn on the basis of statements of the prosecutrix referred to above. The charge cannot be framed on the basis of mere assumption but only upon a conclusion drawn on the basis of material on record i.e. paper accompanying the police report or in the case of grave suspicion. The present case is a case of direct evidence and personal to the prosecutrix therefore, there is no room for suspicion in the facts and circumstances of the case. The court below while framing of charge under Section 3/4 Pocso Act has not first undertaken the exercise to determine the age of the prosecutrix as per the mandate of Section 94 of Act, 2015 itself, particularly when the date of birth of the prosecutirx was available on the record by way of the certificate issued by the principal of the institution when the prosecutrix had studied upto Class-VII. No attempt has been made by court below to establish the date of birth of the prosecutrix in the light of the provisions contained in Section 94 of Act, 2015. As per the medical opinion and the certificate issued by the Head Master of the institution concerned where the prosecutrix had studied up to Class-VII i.e. the institution first attended by her. The prosecutrix is major and therefore prima facie no offence can be said to have been committed under Section 376 IPC or Section 3/4 of the Pocso Act.
This Court is not unmindful of the judgement of the Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. Vs. C.B.I., 2022 SCC OnLine SC 1014, wherein the Apex Court has crystalized that framing of charge order can be challenged only on two grounds (a) the order is without jurisdiction, and (b) if falls in the category of rarest of rare cases. The present case is covered under the first ground provided for by the aforementioned judgement of the Apex Court. The court below while passing the order impugned has failed to exercise its jurisdiction diligently, inasmuch as, court below has proceeded to frame charge under Section 3/4 Pocso Act without first getting the age of the prosecutrix determined in terms of Section 94 of Act, 2015 and secondly there being no allegation in the statements of the prosecutrix referred to above regarding commission of rape upon her deliberately/forcibly or consensual sexual intercourse. Furthermore, as per the statements of the prosecutirx as noted above, none of the conditions provided in Section 375 IPC can be said to be fulfilled. As such, no charge under Section 376 IPC could have been framed either. In view of above, the framing of charge order passed by court below cannot be sustained and is therefore liable to be set aside.
As a result, the present criminal revision succeeds and is liable to be allowed.
It is, accordingly, allowed.
The order impugned dated 06.10.2022, passed by Special Additional Sessions Judge (Pocso Act), Muzaffar Nagar in Sessions Case Pocso No.791 of 2020 (State Vs. Naurang and others) is hereby set aside.
The matter shall stand remanded to court below for decision afresh. Court below shall first determine the age of the prosecutrix as per the mandate of Section 94 of Act, 2015 and in case the prosecutrix is found to be a child within the meaning of Pocso Act then proceed to frame charges against revisionist in the light of the observations made herein-above.
In the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 22.5.2024.
Rks.