Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1278 (PNJ)

Raman Kumar v. State of Punjab

2003-09-10

S.S.GREWAL

body2003
JUDGMENT S.S. Grewal, J. - This Appeal has been instituted by Raman Kumar against judgment and order dated 4.12.1992 whereby he was convicted under Sections 363 and 366 Indian Penal Code and sentenced to undergo RI for 4 years and to pay a fine of Rs. 2000/- under Section 366 Indian Penal Code, in default of payment of fine, he was further sentenced to undergo RI for one year, to undergo RI for 2 years and a fine of Rs. 500/- under Section 363 Indian Penal Code, in default of payment of fine, he was further sentenced to undergo RI for 3 months. 2. Briefly stated, the facts of the case are that on the intervening night of 11/12.10.1990. PW.3-Daulat Ram and his family members including his daughter PW2, Neeru Bala were sleeping in their house. PW.2-Neeru Bala at about 5.15 AM went outside to answer the call of nature in the field but she did not return. PW.3-Daulat Ram alongwith his family members searched for her and inquired from his relatives. Thereafter, he reported the matter to the police. During investigation by the police, PW.2-Neeru Bala was recovered from the custody of the accused-appellant on 15.11.1990, when she was being brought to Pathankot via Jalandhar by the accused. She disclosed that she was taken away by the accused by giving a threat to defame her on 11.10.1990 at about 5.30 p.m. from Pathankot. First she was taken to the bus stand at Pathankot in a rickshaw and therefrom to Amritsar, in a room at Sarai, and subsequent thereto in hired room, where the accused committed rape upon her many a times without her consent. 3. After the completion of the investigation, challan was presented in the Court. Having made out a prima facie case, the accused was charged under Sections 363, 366 and 376 Indian Penal Code to which the accused pleaded not guilty and claimed trial. 4. In order to prove the allegations, the prosecution examined as many as 5 witnesses. After the close of the prosecution evidence, statement of the accused/appellant under Section 313 Criminal Procedure Code was recorded wherein he denied the allegations of the prosecution and pleaded false implication. In defence, he examined DW.1-Karoor Singh and DW.2-Niranjan Singh. However, DW.1-Karoor Singh was discharged as he failed to produce the summoned record. 5. After the close of the prosecution evidence, statement of the accused/appellant under Section 313 Criminal Procedure Code was recorded wherein he denied the allegations of the prosecution and pleaded false implication. In defence, he examined DW.1-Karoor Singh and DW.2-Niranjan Singh. However, DW.1-Karoor Singh was discharged as he failed to produce the summoned record. 5. After hearing learned APP for the State and defence counsel, learned Additional Sessions Judge, Gurdaspur found the appellant guilty of the offence and convicted and sentenced him, vide judgment dated 4.12.1992 which is the under challenge in the present appeal. 6. I have heard Mr. Kuldip Sanwal, counsel for the appellant, Shri Premjit Singh, AAG, Punjab for the respondent and carefully gone through the file. 7. Learned counsel for the appellant contended that PW.1-Dr. Nilima Sharda has stated that the prosecutrix, PW.2-Neeru Bala had given her age as 18 years at the time of her medico-legal examination. However, the prosecutrix, while appearing as PW.2 on 24.9.1991, had given her age as 16-1/2 years. Her birth certificate has also been placed on the file as Ex.D13 in which her date of birth has been recorded as 18.11.1973. The occurrence had taken place on 11.10.1990. So, according to the birth certificate, the age of the prosecutrix was 16 years, 11 months and 21 days at the time of occurrence. PW3 Daulat Ram has given her age as 17/18 years. Thus, there is divergence of opinion about the age of the prosecutrix-Neeru Bala. So, her age should be taken as 18 and benefit should go in accused. For this contention, he had placed reliance on Jinish Lal Sah v. State of Bihar, 2003(1) RCR(Criminal) 247 wherein it has been held that when there is divergent of opinion, benefit of acquittal should be given to the accused. 8. Learned counsel for the State, on the other hand, contended that there is nothing to give the benefit of acquittal to the accused as the birth certificate clearly proves that the prosecutrix-Neeru Bala was less than 18 years of age when she was abducted by the accused. 9. As per the statement of PW.1-Dr. Nilima that the prosecutrix-Neeru Bala stated her age as about 18 years at the time of her medical examination, can be believed. PW.3-Daulat Ram, father of the prosecutrix, also stated that her age was between 17 and 18 years. 9. As per the statement of PW.1-Dr. Nilima that the prosecutrix-Neeru Bala stated her age as about 18 years at the time of her medical examination, can be believed. PW.3-Daulat Ram, father of the prosecutrix, also stated that her age was between 17 and 18 years. Thus, age of Neeru Bala can be taken above 18 years. So, when there is a divergent view about age, the benefit of doubt should go to the accused. The accused has already been acquitted, on the basis of age of the prosecutrix, for the an offence under Section 376 Indian Penal Code, by the trial Court. 10. In view of the above, the appellant is also acquitted of the charges under Sections 363 and 366 Indian Penal Code by giving him benefit of doubt. The appeal is allowed. Appeal allowed.