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2007 DIGILAW 1032 (PNJ)

Vikas v. State Of Haryana

2007-05-02

S.S.SARON

body2007
Judgment S.S.Saron, J. 1. The petitioner is facing trial for having committed offences under Sections 363, 366-A, 376 and 120-B IPC and also Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989. 2. The case of the prosecution is that the daughter of the complainant, who is the prosecutrix, was on 19.7.2006 sleeping in the courtyard. At about 12.00 Oclock in the night the complainant found that his daughter was not on her bed. He asked his wife about her whereabouts. Thereafter, he searched for her in his house and in the neighbourhood but she was not found. Then the complainant along with his son Dharamveer were going to Babu Lal Ex-Sarpanch and on the way the house of Gyarsi Lal Panch falls and they along with Gyarsi Lal went to Babu Lal, Ex-Sarpanch. On 20.7.2006, the complainant, his nephew Rattan and brother-in-law went to Ateli Railway Station and thereafter to the Bus Stand and daughter of the complainant was seen standing outside the Bus Stand with one boy who fled away after seeing them. The complainant then asked his daughter as to with whom had she gone from home and she told him that Laxmi Devi wife of Mukesh had given tablet and in an unconscious state brought her to the Bus Stand, Tajpur. From there she was taken in a jeep by a boy whose name was Vikas (petitioner). After leaving the prosecutrix in the vehicle Laxmi Devi came back to her house at Tajpur and Vikas (petitioner) took her to Narnaul Bus Stand. On reaching Narnaul the vehicle was left and Vikas took her behind the Narnaul Bus Stand and committed rape and also gave bites on her breast and cheeks. However, in the medical examination of the prosecutrix that was conducted on 21.7.2006 (Annexure-P.1) no external injury was detected on any part of the body. It is also submitted that in the medical report the doctor recorded the age of the prosecutrix as 16 years as told by her but at the same time referred the matter to the Radiologist for confirmation of her age. Despite the reference the prosecutrix was not sent for radiology examination to determine her age. The birth certificate showing the age of the prosecutrix as 11.3.1991, it is submitted, has been issued on the basis of registration dated 11.8.2006 which is after the occurrence on 19/20.7.2006. Despite the reference the prosecutrix was not sent for radiology examination to determine her age. The birth certificate showing the age of the prosecutrix as 11.3.1991, it is submitted, has been issued on the basis of registration dated 11.8.2006 which is after the occurrence on 19/20.7.2006. It is also submitted that the prosecutrix was not only not got radiologically examined but her statement under Section 164 Cr.P.C. was also not recorded. 3. In response, learned counsel for the State and the complainant have submitted that the case is fixed before the trial Court for 12.5.2007 for recording the statement of the prosecutrix. Therefore, it would be in the interest of justice to adjourn the case. It is further submitted that the prosecutrix is a minor which is evident from the birth certificate which has been issued under the Registration of Births and Deaths Act, 1969. 4. I have given my thoughtful consideration to the matter. The prosecutrix in the present case is alleged to have been raped by the petitioner. This Court time and again had directed that the evidence of the prosecutrix be recorded. However, for some reason or the other the evidence has not been recorded till date. On 1.2.2007, learned counsel for the State had informed this Court that the case before the trial Court was fixed for 7.2.2007 and 8.2.2007 for prosecution evidence and on these dates the prosecution would examine the prosecutrix. Accordingly, the present case was adjourned to 15.2.2007. On 15.2.2007, learned counsel for the State informed that the prosecution could not examine the prosecutrix as the Presiding Officer was on leave. The case was then adjourned to 8.3.2007. On 8.3.2007, the Court was informed by the State counsel that due to transfer of the case from one Additional Sessions Judge to the other the prosecutrix could not be examined and the case was fixed before the trial Court for 23.3.2007 and on the said date the prosecutrix would definitely be examined. This Court adjourned the present case to 2.4.2007. On 2.4.2007, counsel for the State informed that prosecutrix could not be examined on 23.3.2007 as she did not turn up to depose in the Court. The case before the trial Court was fixed for 16.4.2007 and on that date the prosecution would definitely examine the prosecutrix. This Court adjourned the present case to 2.4.2007. On 2.4.2007, counsel for the State informed that prosecutrix could not be examined on 23.3.2007 as she did not turn up to depose in the Court. The case before the trial Court was fixed for 16.4.2007 and on that date the prosecution would definitely examine the prosecutrix. While adjourning the present case to 17.4.2007 it was made clear that if the prosecutrix was not examined the prayer of the petitioner for grant of regular bail would be considered on merits. On 17.4.2007, on the request of the learned counsel for the complainant, the case was adjourned to 27.4.2007. On 27.4.2007, a direction was issued to ensure that the prosecutrix is examined. However, due to transfer her statement could not be recorded even on 2.5.2007. Therefore, keeping in view the order dated 2.4.2007 the prayer made by the counsel for the State and the complainant for adjournment of the case as the evidence of the prosecutrix is to be recorded is not tenable and is liable to be rejected. 5. A perusal of the record shows that the petitioner has been in custody since 2.7.2006 and the statement of the prosecutrix has not been recorded for one reason or the other. The age of the prosecutrix and the effect of the birth certificate based on the registration after the occurrence is to be gone into and considered on the basis of evidence adduced before the trial Court. This Court while considering the application for bail is not to go into the question as regards the age of the prosecutrix. It may, however, be noticed that in the medical report (Annexure-P.1) of the prosecutrix the doctor had mentioned the age of the prosecutrix as 16 years as was told by her. The doctor had further referred the matter to the radiologist for confirmation of age. Admittedly, no radiological examination of the prosecutrix has been got done to determine her age. The date of birth is based on the registration of 11.8.2006 which is after the occurrence. The prosecutrix though had stated that she had been given bites by the petitioner on her breast and cheeks, however, in the medico-legal report (Annexure Cr. P.1) no mark of external injury was found on her body. It is, however, mentioned in the said report (Annexure-P.1) that possibility of sexual assault cannot be ruled out. The prosecutrix though had stated that she had been given bites by the petitioner on her breast and cheeks, however, in the medico-legal report (Annexure Cr. P.1) no mark of external injury was found on her body. It is, however, mentioned in the said report (Annexure-P.1) that possibility of sexual assault cannot be ruled out. All these aspects are to be considered and gone into by the trial Court after appreciation of evidence. At this stage, a when the medical report records no external mark of injury and the age of the prosecutrix is not shown to be less than 18 years it would be just and expedient to admit the petitioner to bail. For the foregoing reasons, the criminal miscellaneous petition is allowed and the petitioner on his furnishing personal bond and surety in the like amount to the satisfaction of learned Chief Judicial Magistrate, Narnaul shall be admitted to bail. The directions issued by this Court on 27.4.2007 to ensure the examination of the prosecutrix are recalled.