Court No. - 50
Case :- CRIMINAL APPEAL No. - 3690 of 2018 Appellant :- Dharmendra Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Harish Kumar Yadav Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
Suppelementary affidavit filed by learned counsel for the appellant today in the Court, is taken on record.
Heard Sri Harish K. Yadav, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed under section 14-A(1) of S.C./S.T. Act against the impugned charge sheet dated 25.3.2018, cognizance order dated 21.4.2018 as well as issuance of non bailable warrant dated 9.5.2018.
Learned counsel for the appellant contends that the impugned order of cognizance is wrong on facts and law, as no offence under sections 363, 366 IPC and 3(2)(v) S.C./S.T. Act is made out against the appellant; that the appellant has been falsely implicated for enticing away 17 years old prosecutrix in the night of 21.7.2017; that the radiological age of prosecutrix has been determined about 19 years and according to her date of birth 1.1.1996 mentioned in Aadhar Card, she was 21 years of age; that the real fact is that the prosecutrix herself left her house for the appellant and the appellant did not entice her away so no offence is made out against him; that the prosecutrix has made marriage with appellant out of her sweet will on 21.7.2017; that as per school register of Primary Vidyalaya, Barasiya, District Baghpat, where the prosecutrix taken her primary education her date of birth is mentioned as 5.7.2000 and by giving margin of two years, she may be treated to be major; that the Investigating Officer has not investigated the matter property and submitted charge sheet, upon which the learned trial court has taken cognizance without applying mind in mechanical manner; that the impugned order is wrong and is liable to be set aside.
Per contra, learned AGA submitted that in the F.I.R. age of prosecutrix has been correctly mentioned as about 17 years and according to School register produced by the appellant at Annexure No.S.A.1 to the Supplementary Affidavit her date of birth is 5.7.2000, so on the date of enticing her on 21.7.2017, she was admittedly 17 years and 15 days old and may not be considered to be major girl of 18 years; that two years margin may not be given in this case on date of birth in school register; that the Investigating Officer after investigating the matter thoroughly found prima facie evidence, that the minor prosecutrix was enticed away by the appellant and finding the name of Vinod, the brother of appellant in F.I.R. to be wrongly mentioned exonerating him correctly submitted charge sheet only against the appellant; that the alleged marriage with the minor girl is nullity in the eye of law; that the appellant has filed appeal to delay the disposal of trial; that the appeal is liable to be dismissed.
According to paper filed by the appellant himself at Annexure No.1 with supplementary affidavit that prosecutrix was minor girl of 17 years at the time of incident and so the appellant is not entitled to take benefit of her radiological report or the date of birth mentioned in Aadhar Card.
In view of the discussions made above, I find that there is no illegality, irregularity or incorrectness in the impugned order. The appeal is devoid of merits and is liable to be dismissed.
The appeal is dismissed, accordingly.
Order Date :- 30.7.2018 Tamang