Uttarakhand High Court
Asif vs State Of Uttarakhand on 27 July, 2021
Equivalent citations: AIRONLINE 2021 UTR 523
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Bail Appl. No.292 of 2020
Asif .....Applicant
Vs.
State of Uttarakhand ...Respondent
Advocate: Mrs. Pushpa Joshi, Senior Advocate for the applicant.
Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand.
Mr. Pawan Mishra, Advocate for the complainant.
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) The applicant to the present bail application, is alleged to be an accused for commission of the offences punishable under Sections 363, 366-A, 376(3), 506, 120-B IPC; as well as Section 5/6 of the POCSO Act, which was registered as Case Crime No.368 of 2019 at P.S. Patelnagar, Dehradun.
2. The complainant Mohd. Shakir Shaifi, had registered the FIR on 05.09.2019 at 11:53 'o' Clock at Police Station Patelnagar as referred above, in which the applicant has been named as to be an accused, involved in the commission of offence, which was narrated in the said FIR, to the effect that it was on 03.09.2019, his minor daughter, when she had left for school in the morning at 08:30, thereafter her whereabouts were not known and later on it has revealed that the present applicant had somehow been able to entice the minor daughter and had taken her to Baheri District Bareilly, and thereafter kidnapping the daughter of the complainant, he had given a call to the complainant on the cell number of the complainant, whereby he has given a threat that in case if any action is taken against him i.e. by the complainant, he would be facing the dire consequences and it was also complaint that he has intentionally kidnapped the daughter of the complainant.
3. Based on the aforesaid FIR, the police team had initiated the investigation and had recorded the statement of the witnesses and thereafter during the course of investigation it reflected that they were other co-accused persons, who are also engaged in the conspiracy of commission of the offence 2 and after kidnapping the minor daughter, they have taken her to a secluded place and had committed the offence under Section 376 of IPC, by establishing the forceful physical relationship with her.
4. As per the statement recorded by the prosecutrix under Section 164 of the Cr.P.C., she had made a categoric statement to the effect that on 03.06.2019, when she was going to school, the present applicant had forcefully kidnapped her and after taking her in a jungle; under threat by placing a country made pistol on her stomach, had established the physical relationship under the fear of death.
5. The co-accused persons had preferred a bail application before the Coordinate Bench of this Court and the bail application, which was numbered as Bail Appl. No.2619 of 2019 Rizwan vs. State of Uttarakhand, that was considered by the Coordinate Bench and was allowed vide its order of 29.11.2019 and the reason for allowing the bail application of the co-accused person, was on the ground that the principal set of allegations were found to have been levelled against the present applicant and also that the co-accused persons, who were granted bail, since they were not named in the FIR, since their name has not been reflected in the statement, which has been recorded by the prosecutrix under Section 161 of Cr.P.C. and under Section 164 of the Cr.P.C. as well, they were released on bail. In fact, if the logic assigned by the Coordinate Bench of this Court is taken into consideration, it was based on the analysis of the statement of the prosecutrix, which was recorded under Section 161 of Cr.P.C. and under Section 164 of Cr.P.C., which has already been dealt with by this Court as above, in fact, the prime allegation of commission of offence of kidnapping and establishing forceful physical relationship under the threat of being killed, itself is suffice to establish the commission of offence and that was the context taken into consideration by the Coordinate Bench, while granting bail to the co-accused persons.
6. The statement of the prosecutrix as recorded under Section 161 of Cr.P.C. and as that under Section 164 of Cr.P.C. had been consistent and there has been no contradiction at all, as such, and she has recorded the following statements:-
3^^voyksdu /kkjk 164 Cr.P.C. ds c;ku uke ihfM+rk mez 15 o"kZ eq0 v0 la0 368@19 dks tc eSa Ldwy tk jgh Fkh rks vkflQ eq>s jkLrs esa feyk vkSj eq>s cgyk Qqlykdj vius lkFk ys tkus yxk eSaus fojks/k fd;k rks mlus [kVdk esjs isV ij j[kdj lkFk pyus dh /kedh nsus yxkA eSa Mj dh otg ls mlds lkFk cSB x;h mlus eq>s csgks'k dj fn;k Fkk gks'k vkus ij eSaus ns[kk fd oks eq>s taxy ys x;k Fkk mlds lkFk nks vkSj yksx Hkh FksA eSaus ?kj tkus dks dgk rks oks eq>s tku ls ekjus dh /kedh Hkh nh mlus esjs lkFk tcjnLrh 'kkjhfjd laca/k cuk;s Fks eq>s uSuhrky ysdj x;k Fkk oks uSuhrky ls eq>s :nziqj ysdj vk;k ogka ij esjs HkkbZ us eq>s <wa< fy;k FkkA^^
7. When the prosecutrix was recovered, she was sent for medical examination and as per the medical examination report submitted by the doctor on 19.09.2019 after internally examined the prosecutrix, she has opined as under:-
"Opinion- 7 weeks 6 days (11/9/19) Pregnancy seen in USN/ w1A) (2) Rt. .......caladi."
8. As per the opinion expressed by the doctor, she has opined that the prosecutrix was carrying pregnancy of seven weeks and six days. In order to meet up the arguments, which was extended by the learned Government Advocate; while opposing the bail application and in order to controvert the effect of the medical report of the victim and also in order to override the effect of establishing the forceful physical relationship, against the wishes of the prosecutrix at a much later stage the applicant has developed a case from two prospective:-
(A) That since the applicant has married the prosecutrix and a marriage certificate was also placed on record by way of the supplementary affidavit on 24.08.2020, it was contended, in fact no offence under Section 376 of IPC, could have been made out as it was a physical relationship, which was established between the husband and wife.
(B) As far as the foundation for determination of the age of the prosecutrix is concerned, for the purposes of implicating the applicant for the commission of offence under Section 5/6 of the POCSO Act, the provisions of the Juvenile Justice Act, become relevant to be considered because the provisions provided under the Juvenile Justice Act contemplates for the determination of age of a minor, has been 4 borrowed to be made applicable to the offences, which has been contemplated under the POCSO Act. In that context and in order to justify his defence, the school-leaving certificate was placed on record, which was allegedly issued from the School called as Samaj Kalyan Evam Bal Utthan Junior High School, Semi Kheda, Bareilly. But however, in the column of date of birth, if is taken into consideration from the said certificate infact, no date of birth is shown therein.
However, there is another school-leaving certificate, which has been placed on record, which has been issued by the Principle of Maheshanand, Bahuguna Inter College, Semi Kheda, Bareilly where the date of birth of the prosecutrix is shown and relied by the prosecution is shown to be recovered as 12.04.2004.
9. At this stage this Court feels it to be necessary to observe that the alleged marriage which is shown to have been taken place between the applicant and the prosecutrix, there is no authenticity, which could be attached to it because it was a private ceremony, which was performed by the "Maulana" and there are no witnesses to the marriage. Apart from that the certificate, which has been issued by the said "Maulana" there is no specific date which has been deciphered in the certificate of the date on which the marriage was held between the applicant and the prosecutrix.
10. Hence, the theory developed pertaining to the marriage, was sought to be verified by this Court by calling for a report from the Sub-Inspector of the area, who was directed to verify the aforesaid fact, the Government Advocate by supplementary affidavit had submit his report. Subsequent to it, a report has been submitted by the Sub-Inspector, wherein he has reported that on interrogating the "Maulana", who is said to organize the marriage, he has stated that the marriage was solemnized by him on the ground that the applicant has shown the prosecutrix as to be major and of 18 years of age and he has stated that since, he further submitted that in order to fortify the said fact about the age of the prosecutrix being 18 years since the family register was produced before him, he believed the fact of the age of the prosecutrix being major and the marriage ceremony was performed by him and was solemnized on 10.08.2019.
511. The learned counsel for the prosecution, in order to substantiate his stand that the prosecutrix was minor on the date of commission of offence, has placed on record the 'Parivar Register', as issued by the Gram Panchayat Adhikari, Kshetra Madwa, Baheri, District Bareilly; wherein in the family register the year of the birth of prosecutrix has been shown to be 2001. In fact, there is another school register, which has been placed on record to the bail application wherein a copy of the another school register has been produced which is shown to be of Shiv Public School, where the prosecutrix name is appearing at Serial No.64 in the Register and the date of birth recorded therein, on which the reliance has been placed by the applicant is shown to be 12.01.2001. In other words, the Senior Counsel for the applicant, on the basis of the school register of Shiv Public School, on the basis of family register issued by the Gram Panchayat Adhikari, had contended that since date of birth of the prosecutrix is of 2001, hence on the date of the commission of the alleged offence, she was major and hence no offence under Section 5/6 of the POCSO Act could be made out.
12. While controverting the said argument as raised by the counsel for the applicant, the prosecution has placed on record, a School Leaving Certificate No.25, which has been issued by the Junior High School called as Samaj Kalyan, Ucchtar Madhyamik, Vidhyalaya, Saimi Kheda. In the said school- leaving certificate, the date of birth of the prosecutrix is shown to be recorded as 12.04.2004, if that is determined as to be the date of birth, in that eventuality, on the date of commission of the offence, she would be minor. The aforesaid reasoning also further stands fortified from yet another family register, which has been placed on record, issued by the Gram Panchayat Adhikari, where the year of birth of the prosecutrix has been to be recorded as 2004. Though this fact has been attempted to be denied by the counsel for the applicant, on the pretext that in fact, it is an interpolation, which has been made in the Pariwar Register, by changing the year 2001, as given in the family register to 2004. Hence, no reliance can be placed to the family register, which shows the year of birth of the prosecutrix as 2004.
13. In order to clarify the aforesaid situation, this Court by an order of 17.06.2001 directed the Deputy Advocate General Mr. V.K. Gemini, to ensure 6 the personal appearance of Gram Panchayat Adhikari of Kshetra, Budhwa, Tehsil Bareilly, Uttar Pradesh. The said officer i.e. Mr. Ayodhya Prasad Tyagi, the Gram Panchayat Adhikari appeared before the Court and after appearing before the Court, he has made the statement, which has been recorded by this Court in the order of 24.06.2021; that no such family register showing the year of birth of the prosecutrix as 2001 is available in the records of Gram Panchayat Department.
14. In view of the aforesaid, statement made by the officer concerned, who had no personal interest in the matter, I am of the view that no reliance can be placed on the family register, which has been produced by the applicant, showing the date of birth of the prosecutrix as 2001 and the said fact, for not accepting the arguments could also be substantiated from the school-leaving certificate, also where itself the contradictory date of birth has been recorded as 12.04.2004.
15. During the course of the investigation, apart from above, reasoning the Court had also examined the Forensic Science Laboratory report, which was submitted by the Forensic Science Laboratory, Uttarakhand, being Report No.1824 (Bio/DNA) 2019 dated 27.01.2020. In the said Forensic Science Laboratory report there were as many as 11 Exhibits, which were placed before the Laboratory for their scientific examination and after conducting the scientific examination to the Exhibit No.11 i.e. the aspect of conception of the prosecutrix by comparing it with Exbhibits 9 and 10 i.e. blood samples of the victim and the accused, the Laboratory has submitted the report that the DNA found in the Exhibit 11, that is the proof of conception and the DNA found in Exhibits 9 and 10 that is the blood samples of accused and the victim, the Forensic Science Laboratory report has opined that the applicant happens to be the biological father of the child, who was in the womb of the victim. The following report was submitted by the FSL Laboratory:-
"CONCLUSION The DNA test performed on the exhibits provided is sufficient to conclude that, the source of Exhibit-11 (products of conception) 7 was the biological son of the sources of Exhibits-9 and 10 (Blood sample of accused and Blood sample of victim)."
16. Though, this Court ought to have restricted itself, in recording the findings on the aforesaid aspects of pertaining to determination of age; pertaining to the scrutinization of the evidence to establish the date of birth; pertaining to the impact of the medical reports and the FSL report; but since the learned Senior Counsel Mrs. Pushpa Joshi had placed reliance on the same, during the course of her arguments to sustain her arguments, this Court had no option except to record the finding on the arguments extended by her and after judicially scrutinizing the documents relied by her. Hence, in view of the statement made by the Gram Panchayat Adhikari, who was present in person, that in fact the year of birth recorded in the records of Gram Panchayat Office, since it is 2004, the prosecutrix would be treated to be minor on the date of the commission of offence and in that eventuality, the factum of having married, the victim and then establishing the physical relationship becomes irrelevant, when on either of dates i.e. on the date of marriage or on the date of the commission of offence when the victim has conceived, she was minor. Her consent as a minor becomes irrelevant for the purposes of commission of offence, which has been alleged in the FIR and the aforesaid defence of the applicant's counsel stands mitigated further. In view of the finding, which has been recorded in the Forensic Science Laboratory report dated 27.01.2020, when the DNA test was conducted on the blood samples of the accused and the victim and it has been opined by the examining scientist that the accused was the biological father of the child who was in the womb of the victim, for the aforesaid reasons, I am of the view that this is not a fit case, in which bail could be granted to the applicant. Hence, the bail application is rejected.
17. However, it is made clear the whatsoever observation has been made by this Court is only tentative in nature, exclusively for the purposes of considering the bail application, it would not prejudice the mind of the trial court while deciding the trial itself on its own merits.
(Sharad Kumar Sharma, J.) 27.07.2021 Arti 8