Sandeep and Another Vs State of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko and 4 Others

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Neutral Citation No. - 2025:AHC-LKO:687

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Court No. - 28

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Case :- APPLICATION U/S 482 No. - 7162 of 2024

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Applicant :- Sandeep And Another

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Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko And 4 Others

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Counsel for Applicant :- Sachin Pandey Counsel for Opposite Party :- G.A., Pankaj Pandey

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Hon'ble Brij Raj Singh,J.

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1. Heard learned counsel for the applicants, Sri Pankaj Pandey, learned counsel for the opposite party no. 5/complainant as well as learned A.G.A. for the State.

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2. Present application has been filed by the applicants to quash the entire criminal proceedings of S.T. No. 398 of 2024, arising out of Case Crime No. 171 of 2023, under Section 363, 366 IPC & Section 16 and 17 of POCSO Act, P.S.-Baldirai, District-Sultanpur as well as charge sheet No. 01 dated 10.02.2024 including summoning order dated 04.04.2024.

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3. It is the case of the applicants that father of the applicant no. 2 lodged an F.I.R. as case crime no. 171 of 2023 under Sections 363, 366 I.P.C. and Section 16/17 of the POCSO Act, Police StationBaldirai, District- Sultanpur in which charge-sheet was filed against the applicant no. 1 on 10.2.2024 under Sections 363, 366-A, 376 I.P.C. and Section 5/6 of the POCSO Act. In pursuance of the charge sheet, the trial court summoned the applicant no. 1 to face the criminal trial. The applicant nos. 1 and 2 had love affair and they married together out of their free will on 11.12.2022 as per Hindu rites and rituals in a temple. The marriage certificate has been brought on record.

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4. It has been submitted by the learned counsel for the applicants that the applicant was examined by the medical board and as per report of the medical board dated 31.1.2024, the applicant no. 2 was 19 years of age. Learned counsel for the applicants also submitted that on the incident dated 8.6.2023 the prosecutrix was major, because as per report of the medical board she was 19 years of age on 31.1.2024.

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5. It has been submitted by the learned counsel for the applicants that the statements of the victim/applicant no. 2 was recorded under Sections 161 and 164 Cr.P.C. in which she has not supported the prosecution case and she has also admitted that she married the applicant no. 1 out of her free will and she was residing with him as wife. The child, namely, Aryan was born out from the wedlock of the

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applicant nos. 1 and 2 on 1.12.2023 and the birth certificate has also been brought on record along with the applications.

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6. Learned counsel for the applicants submitted that father of the applicant no. 2 earlier lodged F.I.R. as case crime no. 091 of 2023 under Sections under Sections 363, 366, 504, 506 I.P.C. and Section 16/17 of the POCSO Act in which the charge-sheet has also been filed and the same has also been challenged before this Court bearing Application No. 10225 of 2023, which is connected along with the present application. In the said connected Application No. 10225 of 2023 the Co-ordinate Bench of this Court has passed the following order dated 31.10. 2023:-

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"1. On 16th October, 2023, following order was passed:-

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"1. Supplementary affidavit filed by learned counsel for the applicants is taken on record.

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2. Heard learned counsel for the applicants as well as learned A.G.A. for the State.

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3. The present application has been filed for quashing the criminal proceeding of S.T. No.910 of 2023 arising out of Case Crime No.0091 of 2023 U/s 363, 366, 504, 506 I.P.C. & Section 16/17 of P.O.C.S.O. Act, Police Station- Baldirai, District- Sultanpur as well as charge-sheet dated 26.05.2023.

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4. Learned counsel for the applicants submits that father of victim was keen to settle her marriage with someone else but she was willing to enter into marriage with applicant no.1. He further submits that her radiological examination for determination of age was conducted, in which, it was found that she was aged about 19 years at the time of alleged incident and father of victim relied on Aadhar Card for determination of her age. He further submits that it is well settled by this court that Aadhar Card is not a valid proof of date of birth. He further submits that without considering the ossification test as well as statement of victim recorded U/s 161 as well as 164 Cr.P.C., charge-sheet was filed by Investigating Officer in the present case and trial was proceeded. It is further submitted that victim is now carrying pregnancy of 08 months and the trial of case in question is going on, deposition of

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victim is also fixed. It is, thus, submitted that indulgence of this Court is necessary.

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5. List this case on 31.10.2023.

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6. On the next date, private respondent/complainant shall appear in person before this Court."

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2. In pursuance of the aforesaid direction, father of the victim is present along with Sub-Inspector Harish Chandra, Police Station- Baldirai, District- Sultanpur and the applicant as well as the victim are also present. Victim stated that she is residing with the applicant and now she is carrying a pregnancy of eight months.

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3. List this case on 12th February, 2024."

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7. It has further been submitted by the learned counsel for the applicants that after looking into the statement under Section 164 Cr.P.C. read with Section 161 Cr.P.C. it is apparent from the face of the record that the applicants married together and they are residing as husband and wife. The other glaring fact has been pointed out by the learned counsel for the applicants is that baby boy was born from the wedlock of the applicants, therefore, at this juncture no fruitful purpose would be served to allow the trial court to conclude the trial against the applicant no. 1, who is husband of the applicant no. 2.

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8. In support of his submission, learned counsel for the applicants relied upon a judgment dated 18.7.2023 of Hon'ble Supreme Court in the case of P. Yuvaprakash Vs. State represented by Inspector of Police (Criminal Appeal No. 1898 of 2023). The relevant para 19 of the judgment is quoted hereinbelow:-

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"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in

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terms of the examinatio of M, a certificate was issued stating "that the age of the said girl would be mo than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates, nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result c the ossification or bone test was the most authentic evidence, corroborated by examining doctor, PW-9."

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9. In support of his submission learned counsel for the applicants also relied upon a judgment dated 6.11.2023 passed by the Coordinate Bench of this Court in Application U/S 482 No. 9813 of 2023 (Ram Kishor @ Kishor Vs. Sate of U.P. through Additional Chief Secretary Home Department Lko and another) . It has been submitted that in the aforesaid case Ram Kishor @ Kishor (Supra) the offence under Section 3/4 of the POCSO Act was also registered along with other Sections 363, 366, 506, 376 I.P.C. and after considering the statement of the victim under Sections 161 and 164 Cr.P.C. as well as ossification test of the victim, the Co-ordinate Bench of this Court quash the entire proceedings as well as charge sheet against the Ram Kishor @ Kishor, therefore, the case of the present applicant is also at par with the Ram Kishor @ Kishor.

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10. On the other hand, learned A.G.A. has submitted that after perusal of the school certificate it is evident that the prosecutrix was below 18 years and at the time of incident she was 17 years, 5 months and 5 days, therefore, the marriage of the applicants is null and void

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and consequently, there is no illegality in the order of the trial court for summoning the applicant no. 1 to face the trial and thus, present application under Section 482 Cr.P.C. is liable to be rejected.

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11. Counsel for the complainant/opposite party no. 2 has orally supported the submission of the learned counsel for the applicants and submitted that he has no objection, in case the criminal proceedings and charge sheet are quashed.

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12. After going through the record, I find that applicant no. 2 has not supported the prosecution case in her statement recorded under Section 161 and 164 Cr.P.C. specifically stating that she married with applicant no.1 out of her free will and at that relevant point of time she was major. The very glaring fact, which has come on record is that they are living as husband and wife and a child was born from their wedlock, therefore, no fruitful purpose would be served in trying the applicant no.1 in the present case, who is husband of the applicant no. 2, therefore, the aforesaid criminal proceedings and charge-sheet are liable to be quashed.

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13. The application is, accordingly, allowed.

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14. The entire criminal proceedings of S.T. No. 398 of 2024, arising out of Case Crime No. 171 of 2023, under Section 363, 366 IPC & Section 16 and 17 of POCSO Act, P.S.-Baldirai, District-Sultanpur as well as charge sheet No. 01 dated 10.02.2024 including summoning order dated 04.04.2024 are quashed.

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(Brij Raj Singh, J.)

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Order Date :- 6.1.2025 A nuj S ingh

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Digitally signed by :- ANUJ PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sandeep and Another v. State of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko and 4 Others

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