Allahabad High Court
Tihuri Devi vs State Of U.P. And 3 Others on 14 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1857, 2020 (1) ALJ 622
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 70 Case :- MATTERS UNDER ARTICLE 227 No. - 2989 of 2019 Petitioner :- Tihuri Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Swati Agrawal Srivastava Counsel for Respondent :- G.A. Hon'ble Sanjay Kumar Singh,J.
1. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State/respondent no. 1 to 4.
2. This petition under Article 227 of the Constitution of India has been preferred by the petitioner (mother-in-law of the victim) with a prayer to set aside the order dated 13.2.2019 passed by Chairman, Child Welfare Committee, Ghazipur in case crime no. 0014 of 2018, under Section 363, 366 and 7/8 POCSO Act, Police Station Muhamdabad, District Ghazipur, whereby victim Nidhi Yadav has been sent to Late Shivpujan Pathak, Bal Grih Balika, Rastipur, Saidpur, Ghazipur with further prayer to issue a direction in the nature of mandamus for medical examination of the prosecutrix and to pass further order, which this Court may deem fit and proper under the facts and circumstances of the case.
3. Filtering out the unnecessary details, the basic facts of the case are that on 23.1.2018 the informant-Vidya Devi lodged FIR with regard to alleged incident dated 15.1.2018 registered as case crime no. 0014 of 2018, under Section 363, 366 IPC and 7/8 POCSO Act against the petitioner and six other co-accused persons (who are family members of the petitioner), making allegations against them that on 15.1.2018 they in collusion with each other enticed away her minor daughter (Nidhi Yadav). The said FIR was challenged by the petitioner and other co-accused persons in Criminal Misc. Writ Petition No. 5946 of 2018, which was disposed of vide order dated 13.3.2018 with the direction that the petitioners (accused persons) shall not be arrested in the said case till the submission of the police report under Section 173 (2) Cr.P.C.
4. Investigating Officer during investigation of the case, produced the victim Nidhi Yadav before Additional Civil Judge (Junior Division) Court No.2, Ghazipur on 13.2.2019, where statement under Section 164 Cr.P.C. of the victim was recorded. Victim in her statement under Section 164 Cr.P.C. did not support the prosecution case and disclosed her age, about 19 years. She has also specifically stated that she on her own sweet will solemnized her marriage with Subhash (son of the petitioner) on account of love and affection with each other and they are living together as husband and wife and leading happy matrimonial life. The said statement under Section 164 Cr.P.C. of the victim is reproduced herein-below:-
"Ck;ku vUrxZr /kkjk 164 n0 iz0 l0 uke fuf/k ;kno mez 19 o"kZ firk dk uke jk/ks';ke ;kno fuoklh xzke j?kqojxat Fkkuk eqgEenkckn ftyk xkthiqj eq0 v0 l0 14@18 /kkjk 363@366 vkbZ0 ih0 lh0 o /kkjk 7@8 ikDlks ,DV ihfMrk dh QksVks o gLrk{kj esjs le{k izekf.kr djds izLrqr fd;k x;kA ihfMrk }kjk ;g c;ku fn;k fd fnukad 15 tuojh 2018 dks eSa lqHkk"k jktHkj iq= Hkxoku jktHkj ds lkFk ?kj ls Hkkx dj fnYyh pyh x;hA ge nksuks ,d nwljs dk ialn djrs FksA geus fnYyh esa efUnj esa 18 tuojh 2018 dks 'kknh dj yhA ge ifr iRuh ds :i es lkFk esa jgs vkSj lqHkk"k ls eq>s ,d csVk 1 tuojh 2019 dks gqvkA tc ges dsl dk irk pyk rks ge xkthiqj vk x;sA eSa viuh ethZ ls lqHkk"k ds lkFk x;h FkhA eq>s dqN vkSj ugha dgukA ;g c;ku eSa viuh ethZ ls ns jgh gWwA c;ku lqudj rLnhd fd;kA ihfMrk ds cksyus ij esjs }kjk v{kj'k% ntZ fd;k x;kA 13-2-19 fuf/k ;kno"
5. As per the prosecution case, the said statement of the victim was recorded in presence of her parents, thereafter parents of the victim clearly refused to take the custody of the victim. Under the circumstances, victim was produced by the Investigating Officer before Chairman, Child Welfare Committee, Ghazipur, who has passed order dated 13.2.2019 observing that the victim is minor aged about 13 years and a baby aged about one and half month is also with her. As such, she has been directed to send Late Shivpujan Pathak, Bal Grih Balika Rastipur, Saidpur, Ghazipur. In the aforesaid background, pursuant to order dated 13.2.2019, the victim alongwith her baby sent to aforesaid Bal Grih and since then she is under the supervision of respondent no.3. It is also pointed out that on 1.3.2019 petitioner moved an application before the Chairman, Child Welfare Committee, Ghazipur for getting the medical examination of the victim conducted and copy of the same was also sent to the respondent nos. 2 and 3, but no attention was paid towards the grievance of the petitioner, therefore, petitioner after running from pillar to post, having no option left has knocked the door of this Court by means of the present petition.
6. At the first hearing of this case, it was submitted by the learned counsel for the petitioner that in fact victim is major and she on account of love affair with the son of the petitioner (Subhash) solemnized her marriage with him and from the wedlock of the victim and her husband Subhash, a male child born. The victim was not enticed away by the petitioner or other co-accused persons, but she herself eloped with the son of the petitioner.
Much emphasis was given by contending that since the victim is having a newly born baby in her lap, therefore, in this circumstances, she is unable to provide healthy food to her baby and to maintain her properly. As such, victim and her baby are being harassed, though the victim is major and not an accused in any case. It was also submitted that the victim is ready for her medical examination and she never refused for the same, but the police of concerned police station in collusion with the parents of the victim deliberately recorded her wrong statement.
7. Considering the aforesaid facts and circumstances of this case, this Court in order to ascertain the actual age of the victim passed order dated 23.04.2019 directing the Chief Medical Officer, Ghazipur to constitute a medical board for getting the ossification test of the victim Nidhi Yadav conducted on 26.4.2019 and the respondent no.3 was directed to ensure the production of the victim Nidhi Yadav before the Chief Medical Officer/medical board on the said date. The Chief Medical Officer, Ghazipur was further directed to submit ossification test report in a sealed cover envelop before this Court through Registrar General on the next date of listing. The Investigating Officer was also directed to file an affidavit disclosing the reason that why the victim was not produced before the doctor concerned for her ossification test before sending the victim in Bal Grih.
8. Pursuant to order dated 23.04.2019 of this Court, ossification test of victim Nidhi Yadav was done on 26.04.2019. The ossification test report dated 26.4.2019 of victim Nidhi Yadav sent by the Chief Medical Officer, Ghazipur has been produced by the office of Registrar General in a sealed cover envelop before this Court. The said report dated 26.4.2019 indicate that the victim Nidhi Yadav appeared before the Board of Doctors on 26.4.2019 and after her ossification test, the Board is of the opinion that she is between 23-24 years of age. The aforesaid ossification test report dated 26.4.2019 of victim Nidhi Yadav is reproduced herein-below:-
"Compliance of order dated 23.04.2019 (Tiruhi Devi Vs. State of U.P. and others) age determination of Nidhi Yadav done on 26.04.2019 by the order of honourable High Court, Allahabad Nidhi Yadav (Victim) MI-Small Black til present on the left side upper back about 3 cm medial to medial border of scapula. B/B - Constable Sandhya Singh, PNO No. 162520907, Asha Jyoti Kendra, Ghazipur. Km. Nidhi Yadav appeared before the board of Doctors on dated 26.04.2019 for her age estimation & her following examinations has been made. According to her body growth, development, dental & radiological examination has been made. A-General Examination-
1-Public hairs-Present, 2-Axillary hairs-Present 3-Breast development-Tanner stage-4 (Fully developed) B-Radiological Findings-
1-X-ray Right Elbow joint -Fused 2-X-ray Right Knee -Fused 3-X-ray Right Wrist joint -Fused 4-X-ray Medical End of Right clavicle -Fused 5-X-ray sternum-Segments of body of sternum -Fused Manubrium & Xiphoid not fused with body C-Dental Findings-Third molor of both side and both jaw are impacted.
With the all above details we are of the opinion that she is between 23 to 24 years of age Right Thumb impression of Km. Nidhi Yadav
1. Dr. Kundan Kumar Patel Radiologist Pt. Deen Dayal Upadhyay Govt. Hospital Varanasi
2. Dr. Pallavi Lady Medical Officer District Women Hospital Ghazipur
3. Dr. Prem Chand Dental Surgeon District Hospital Ghazipur
4. Dr. Ravindra Nath Singh Orthopadic surgeon District Hospital Ghazipur
5. Dr. Girish Chandra Maurya Chief Medical Officer Ghazipur"
9. Learned A.G.A. submitted that the Investigating Officer Sri Yogendra Kumar, Sub Inspector, Police Station Mardaha, District Ghazipur in his counter affidavit dated 17.7.2019 has taken a stand that on 11.1.2019 victim Nidhi Yadav had refused to get her medical examination conducted and in this regard she has given an undertaking in her own hand writing, which is annexed as Annexure No.2 to the counter affidavit dated 17.7.2019.
10. Considering the peculiar facts and circumstances of the case, this Court on 1.8.2019 passed order issuing notice to the informant (Vidya Devi) to file counter affidavit, if she so desires. Respondent no.3 was directed to produce the victim Nidhi Yadav alongwith her baby before this Court today, bringing on record the order, by which, the victim, Nidhi Yadav was sent to Late Shivpujan Pathak, Bal Grih Balika Rastipur, Saidpur, Ghazipur alongwith other relevant facts about victim Nidhi Yadav. The Investigating Officers of this case were also directed to be present in person before this Court alongwith case diary.
11. Today, office has submitted report dated 14.08.2019 mentioning that a letter dated 8.8.2019 was sent by the Deputy Registrar of this court to Chief Judicial Magistrate, Ghazipur alongwith order dated 1.8.2019 for service of notice upon the informant on or before 14.08.2019. The Chief Judicial Magistrate, Ghazipur by letter dated 9.8.2019 informed the Deputy Registrar (Judicial) of this Court that as per report submitted by police of police station Muhamdabad, District Ghazipur, notice upon the informant (Vidya Devi) has been served. The letter dated 9.8.2019 of C.J.M., Ghazipur is on record.
12. Today, when case called out, no one is present on behalf of the informant (Vidya Devi). Sri Tarun Srivastava, present Investigating Officer/S.I., Police Station Muhamdabad, District Ghazipur is personally present before this Court. Pursuant to order dated 1.8.2019 of this Court, Smt. Rekha Maurya (authorized representative of respondent no.3) has produced the victim Nidhi Yadav alongwith her baby before this Court. Victim Nidhi Yadav has been identified by the petitioner and counsel for the petitioner. Smt. Rekha has also produced the copy of order dated 13.02.2019 of Chairman, Child Welfare Committee, Ghazipur, which is kept on record.
13. Statement of Victim Nidhi Yadav has been recorded before this Court in presence of learned counsel for the petitioner, learned A.G.A., Tarun Srivastava (present Investigating Officer of this case) and Rekha Maurya (authorized representative of respondent no.3), who has produced the victim before this Court. The victim Nidhi Yadav has stated before this Court that she fell in love with Shubash (son of the petitioner) and she has solemnized marriage with Shubash of her own sweet will without any fear, threat or coercion. She has also stated that she herself eloped with the son of the petitioner and she has not been enticed away by the accused persons. She has further stated that she is major and wants to go with the petitioner alongwith her baby to live in her matrimonial house. Victim has clearly stated that she never refused for getting her medical examination conducted. The Investigating Officer Yogendra Pal has made a wrong entry from his own that victim does not want to get her medical examination conducted. She has also stated that the such contents/averments, as mentioned in report dated 11.1.2019 of police station Muhamdabad, District Ghazipur is not in her hand writing and the same has been fabricated and concocted by the Investigating Officer Yogendra Pal himself.
14. The Apex Court in case of Suhani and another vs. State of U.P. and others, Civil Appeal no.4532 of 2018, decided on 26.04.2018 has considered the medical determination of age is the rightful course of action. For ready reference the said judgment is reproduced herein-below:-
"Leave granted.
The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3. It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no. 2. On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nari Niketan, Allahabad. When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh. We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-
"Radiological Examination X-Rays advised for age estimation:-
X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine -Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department.
Report of Radiological Examination-
All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years.
Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years.
Medial end of clavicle not fused, suggestive of age 22-27 years.
S1 of sacrum not fused with S2, suggestive of age 17-24 years.
Imp.:-Estimated Bone age is between 19-24 years.
FINAL REPORT/OPINION:
Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years."
In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.
In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.
The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."
15. After having heard the submissions of victim Nidhi Yadav, learned counsel for the petitioner and learned AGA, it is clear on record that victim has not supported the prosecution case and allegations levelled by the informant against the accused persons. The main substratum of arguments of learned counsel for the petitioner is that though the victim is major, but she has been illegally sent to Late Shivpujan Pathak, Bal Grih Balika Rastipur, Saidpur, Ghazipur against her wishes treating her as a minor alongwith her baby aged about 1 and 1/2 months. It is next submitted by the learned counsel for the petitioner that since as per the ossification test report dated 26.4.2019, the victim Nidhi Yadav has been found major, therefore, she should be released from Late Shivpujan Pathak, Bal Grih (Balika) Rastipur, Saidpur, Ghazipur. After the aforesaid narration of victim Nidhi Yadav before this Court and looking to the facts and circumstances of the case, this Court feels it appropriate to set the victim at her liberty.
16. In the result, this petition succeeds and is allowed. The order dated 13.2.2019 passed by Chairman, Child Welfare Committee is hereby set aside. The victim Nidhi Yadav, who is present before this Court alongwith her baby is set at her liberty forthwith. Since, victim Nidhi Yadav is major as per ossification test report dated 26.04.2019, therefore, she is free to go wherever she likes and with whomsoever she wants.
17. Copy of this order be issued to learned Additional Government Advocate in accordance with law, who shall communicate this order to Superintendent of Police, District-Ghazipur.
Order Date :- 14.8.2019 AK Pandey