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2011 DIGILAW 1999 (PNJ)

Guddu son of Daya Ram v. State of Punjab

2011-11-08

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J.: - This is an unfortunate case where the trial Court inspite of the fact that no legal evidence was available as against the accused, recorded conviction as against him and as a result he has been in jail for the past more than 6 years in a case of rape. 2. The brief case of the prosecution is that PW9 the prosecutrix in this case who was just aged eight years was committed rape by the accused, by taking her at odd hours from the front side of her house to the field. 3. PW6 Ramji Lal, the father and PW7 Meera , the mother of the prosecutrix having got up at about 2 am on 31.3.2004 were in search of their daughter who was missing. They spotted her coming in the street with blood stained clothes. She disclosed that somebody committed rape upon her. PW6 proceeded to the Police Station and lodged the complaint. Formal FIR was registered. PW9 the prosecutrix in this case was subjected to medicolegal examination by PW1 Dr. Anantjit Kaur. PW1 having thoroughly examined the prosecutrix found that there were fresh multiple abrasions on the arms, legs and face. The right eye-lid was also found swollen. The hymen was found to be torn afresh. There was also fresh tear in the posterior portion of the vagina. The vaginal mucous was also torn posteriorly. 4. The accused confessed the crime before PW3 Vikram which occasioned in the arrest of the accused. Investigation was completed. Final report was filed for the offence under Section 376 of the Indian Penal Code. 5. The trial Court having relied upon the testimony of the prosecutrix in the back-ground of the medical evidence available on record recorded conviction under Section 376 of the Indian Penal Code. 6. I deeply considered the rival submissions made by the learned Counsel appearing on the side of the accused as well as the learned Assistant Advocate General, Punjab appearing for the respondent-State. 7. The First Information Report would disclose that an unidentified person had committed rape upon the prosecutrix who was examined as PW9. As the prosecutrix as well as parents of the prosecutrix were not in a position to rezo in on the culprit, they could not specifically name the accused who committed rape upon PW9 during the course of investigation done by the investigating official. As the prosecutrix as well as parents of the prosecutrix were not in a position to rezo in on the culprit, they could not specifically name the accused who committed rape upon PW9 during the course of investigation done by the investigating official. PW6 Ramji Lal, the father and PW7 Meera, the mother of the prosecutrix have very honestly deposed before the Court that only an unidentified person committed rape upon their daughter. In other words their testimony is quite in tune with their first version before the investigating officials under Section 161 Cr.P.C. As there was no incriminating circumstance spoken to by PW6 and PW7, the accused did not choose to subject them to cross-examination. 8. The Court left with the testimony of the prosecutrix and the medical evidence available on record. The medical evidence would categorically establish before the Court that the prosecutrix was raped by a person. The prosecutrix had sustained many abrasions on her person. Her private part had also been completely found torn. So the prosecution could establish through the medical testimony that PW9 the prosecutrix in this case was subjected to rape by some person. Who was the person who actually committed rape upon PW9 remains to be answered. 9. On a careful perusal of the testimony of PW9, the prosecutrix in this case, I find that she has come out with a totally different version from that of her statement under Section 161 Cr.P.C. Firstly, it was not the case of the prosecution that either the prosecutrix or her parents were very well aware of the identification of the accused at the first inception or during the course of investigation. PW6, PW7 and PW9 have come out with a version before the investigating official that only an unidentified person committed this obnoxious crime. In a fond hope of establishing that the accused came with an extra judicial confession before PW3 Vikram, the latter was examined before the Court but unfortunately he left the prosecution in the lurch at the crucial stage of trial by completely turning hostile to the version of the prosecution. As a consequence, the alleged extra judicial confession made by the accused before PW3 was not established by the prosecution. As a consequence, the alleged extra judicial confession made by the accused before PW3 was not established by the prosecution. The investigating officials could arrest the accused only based on the extra judicial confession given by the accused to PW3 who in fact brought the accused before the police for effecting arrest. Lack of support given by PW3 to the case of the prosecution virtually dealt a death blow to the case of the prosecution. 10. Now let me critically analyse the testimony of the prosecutrix who was examined as PW9. The fact remains that she was about 10 years of age at the time of examination, though she has deposed that she was 12 years old at the time of examination, inasmuch as she was just eight years of age at the time when the occurrence took place. For the first time before the Court she comes out with a version that the accused present in the Court took her from her house to a nearby water tank and committed rape upon her. Even such first version in evidence was completely watered down by her during the course of cross-examination when she appeared as PW9 before the trial Court. She would depose that she could not recognize the accused who lifted her. She comes out with another version that the accused was accompanied by two or three persons at the time of occurrence. Very categorically she would state before the Court during the course of cross-examination that only one person committed rape upon her and she could not recognize him. Her further version is that she had not seen any person who had committed rape upon her from the date of occurrence till she was examined before the Court. It is to be noted at this juncture that no test identification parade was conducted by the investigation agency. 11. In cases like this where the victim was a minor who may not be in a position to describe the identity of the culprit, the investigating officials should have gone in for DNA test with available blood stained found on the apparels of the victim. In my considered view the whole case of the prosecution has completely fallen down to the ground on account of the fact that the investigating official had not resorted to the modern technique in the matter of investigation of such cases. In my considered view the whole case of the prosecution has completely fallen down to the ground on account of the fact that the investigating official had not resorted to the modern technique in the matter of investigation of such cases. Here is a case where a minor girl was committed rape. She was not in a position to come out with the identity of the accused who committed rape upon her. She was found with a lot of blood stains on her apparels. I fail to understand why the investigating official had not resorted to the modern technique to clamp the accused with the offence of rape. 12. To top it all, the minor girl comes out with a damaging version that she was in fact tutored by the police officials to identify the accused in the open Court. 13. In view of the above facts and circumstances, I find that the prosecution has miserably failed to establish that the accused appellant was the person who committed rape upon the minor girl who was examined as PW9. The benefit of doubt which is writ large in this case will have to be given to the accused. Therefore, the accused is entitled to acquittal. 14. As a result, the judgment of conviction and sentence passed by the trial Court is set aside. The accused is acquitted of the charge under Section 376 of the Indian Penal Code. He be set at liberty forthwith, if not required in any other case. Consequently, the appeal is allowed. ----------------