Madhya Pradesh High Court
Balaram Balai vs The State Of Madhya Pradesh on 31 August, 2015
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
SINGLE BENCH : HON'BLE JUSTICE SMT. S.R. WAGHMARE
Cr.R. No.844/2015
Balaram Balai ......Petitioner.
versus
State of M.P. ...... Respondent.
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Shri Ashish Gupta, learned Counsel for the petitioner.
Shri Aniket Naik, learned Counsel for the respondent /State.
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ORDER
(Passed on 31st of August, 2015) By this revision petition under Section 397 r/w Section 401 of the Cr.P.C., petitioner Balaram Balai, is aggrieved by order dated 20/06/2015 passed by the Additional Sessions Judge, Mahidpur, District Ujjain (M.P.) in Sessions Trial No.86/2015 framing charges for offence under Sections 363 & 366 of the IPC.
02. Counsel for the petitioner has vehemently urged the fact that complainant Sabaji lodged a report at Police Station Jharda that one year prior to registration of the FIR, he had fixed the marriage of his daughter Jassubai with the accused. However, marriage was not solemnized since his daughter was only sixteen years of age. On 05/12/2014, the applicant came to the house of the complainant and thereafter on the pretext to answer the call of nature, the prosecutrix left her parental home and 2 did not return. The FIR was lodged at Police Station Jharda at crime No.264/2014 for offence under Section 363 and 366 of the IPC. After the registration of the FIR the investigation was set in motion, statements of the witnesses were recorded under Section 161 of the Cr.P.C., spot map was drawn, scholar register in regard to the age of the prosecutrix was seized, on 19/12/2014 the prosecutrix was produced at the police station by the applicant. She was sent for medical examination and statements of the prosecutrix was also recorded u/S 164 of the Cr.P.C. and the applicant was arrested and after completing the necessary and mandatory formalities, a charge-sheet under Sections 363 & 366 was filed against the applicant Balaram, the petitioner in the present case. He was duly charged and committed his trial and hence the present petition.
03. Counsel for the petitioner has vehemently urged that the statements recorded u/S 164 of the Cr.P.C. clearly indicates that she was only 19 years of age and she has also so deposed in Court. She has also admitted that she had married the applicant on consent at Ganesh Temple in Ujjain and at present also she was living with him in lodge and she has nothing to complain, whereas, the disgruntled father has filed the missing person report. Counsel further submitted that the FIR was delayed by seven days and the 3 incident took place on 05/12/2014 and the FIR was filed on 12/12/2014 and false case has been reported.
04. Counsel for the respondent/State on the other hand opposed the submissions put forth by Counsel for the petitioner and submitted that the prosecutrix, according to the FIR, was only 16 years of age and hence the offence is completely made out and the consent or the submissions of the prosecutrix in Court u/S 164 of the Cr.P.C. were of no use to the petitioner. Counsel prayed that the petition is without merit and the same be dismissed.
05. On considering above submissions and considering the documents filed along with the petition, I find that the documentary evidence on record i.e. scholar register as well as the declaration certificate of the Principal of the school shows that the prosecutrix was sixteen years of age at the time of incident. So also, on considering the above submissions, the prosecutrix is undoubtedly a consenting party. There are allegations that the father of the prosecutrix wishes to get her married elsewhere. At the same time it can be seen from the documents and complaint filed by the father of the prosexutrix that the prosecutrix was also married at early age with the present applicant. Then even if it is found that the prosecutrix is a minor, no fruitful purpose will be served in convicting the accused. Moreover, Jassubai has been arrested and has been released 4 only on the orders of the Chief Judicial Magistrate, Class I, Mahidpur and again residing with the parents of the present applicant.
06. The C.J.M. on considering that the prosecutrix is a minor has sent her to the Nari Niketan since she refused to go with the father upon recovery and her arrest. However, the order regarding the Nari Niketan was set-aside by the Additional Sessions Judge, Mahidpur by order dated 23/12/2014 and in the said order the learned Judge has categorically observed that the age of the proceturix has not been determined and her statement before CJM indicates that she was 19 years of age. Whereas, according to the Adhar- Card she was born on 01/08/1998 and according to the scholar register she was born in the year 1998.
07. On considering the facts and circumstances of the case, the age of the prosecutrix is not established. And in this light, I find that it would be more appropriate to set- aside the charges levelled against the applicant for offence under Sections 363 & 366 of the IPC by giving him the benefit of doubt. The petitioner shall be set at liberty forthwith, if not required in any other case.
With the aforesaid, the impugned order is set aside. CC as per rules.
(Mrs. S.R. Waghmare) Judge Adarsh