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2011 DIGILAW 2272 (PNJ)

Sandeep Singh v. State of Punjab

2011-12-24

DAYA CHAUDHARY

body2011
ORDER 1. The present application has been filed on behalf of applicant-appellant Sandeep Singh for suspension of sentence during the pendency of the appeal. 2. Notice in the application was issued on 27th September, 2010. 3. Learned counsel for applicant-appellant submits that appellant has falsely been implicated in the case and only allegation against the applicant is that the prosecutrix was kidnapped from her lawful guardianship. Initially, no allegation of rape was levelled by the prosecutrix in the statement recorded under Section 161 Cr.P.C. There is no evidence of rape and no case is made out under Section 376 IPC as per statement of prosecutrix as well as medical evidence. As per statement of prosecutrix, while appearing as PW5 in the Court, she has stated that she was a student of 10+2 Class at Guru Ram Dass Public School, Patiala and was 19 years of age. Even a categoric finding has been given by the trial Court that the age of the prosecutrix was more than 19 years and there was no reliable medical evidence to convict the applicant under Sections 366/376 IPC. Learned counsel for the applicant-appellant also submits that Dr. Sandeep Kaur PW-2 who medico-legally examined the prosecutrix on 1st July, 2008 gave an opinion that no sexual intercourse had taken place and only the opinion was given on the basis of report Exhibit PG issued by the Department of Gynecologist that no fresh bleeding was there and as such the opinion given by the doctor does not convey any positive indication that it was a case of rape. At the most, it appears to be a case of consent. The applicant-appellant remained on bail during trial and he never misused the concession of bail in any manner. He is in custody since 6th May, 2010. 4. Mr. Vishal Munjal, learned Addl. A.G. Punjab opposes bail on the ground that it is a serious offence and as per opinion given by the doctor, it cannot be said that no rape was committed upon the prosecutrix. As per statement of the prosecutrix, it is evident that the applicant-appellant along with two other un-known persons had committed rape upon the prosecutrix and her age, as per statements of PW-3, PW-5, PW-7 and document Exhibit PW3/C, was below 18 years on the day of occurrence. As per statement of the prosecutrix, it is evident that the applicant-appellant along with two other un-known persons had committed rape upon the prosecutrix and her age, as per statements of PW-3, PW-5, PW-7 and document Exhibit PW3/C, was below 18 years on the day of occurrence. Learned counsel for the State also submits that the delay in such like cases is not fatal as the family members of the girl think twice before registration of case to the police. 5. Heard the arguments of learned counsel for the parties and have also gone through the contents of the FIR and other documents available on the record. 6. As per case of the prosecution, prosecutrix Jasneet Kaur @ Neetu was eloped with accused Sandeep Singh, who was her neighbour on 29th June, 2008. She did not make any statement with regard to any kidnapping or rape even after she was recovered on 30th June, 2008 but her statement was recorded under Section 161 Cr.P.C. after fifteen days and in that statement she did not allege any allegation of rape against the accused. Even there is no corroboration with regard to allegation of rape from the medical evidence as there was no sign of fresh injury on any part of her body. Opinion of expert gynecologist was sought which was reported to be negative. In the challan under Section 173 Cr.P.C. only offence under Sections 363/366 IPC was there and charge was also framed thereunder by the trial Court. In the supplementary challan under Section 173(8) Cr.P.C. section 376 IPC was added on 14th November, 2008 on the basis of report of Chemical Examiner and subsequent opinion of Dr. Sandeep Kumar (PW2) made on 21st October, 2008 wherein he opined that no sexual intercourse had taken place. The prosecutrix was held to be more than 18 years of age on the basis of radiological examination as proved from the statement of PW4 Dr. Abhishek Aggarwal, Radiology Department, Rajindera Hospital, Patiala. She was stated to be more than 20 years of age on the basis of original X-ray report as well as skiagrams Ex.PW4/B to PW4/G. At the most, it appears to be a case of consent. Abhishek Aggarwal, Radiology Department, Rajindera Hospital, Patiala. She was stated to be more than 20 years of age on the basis of original X-ray report as well as skiagrams Ex.PW4/B to PW4/G. At the most, it appears to be a case of consent. Learned trial Court has also observed in para No.34 of the judgment that age of the prosecutrix was assessed to be more than 20 years as on 4th July, 2008 and although “ossification test is not complete in order to determine the age of the prosecutrix, but there is always an error of plus minus two years both for and against the age of a person so determined. As per ossification test, the age of the prosecutrix was more than 20 years and even if two years are deducted from 20 years, the possible age of the prosecutrix being more than 18 years, cannot be ruled out. Dr. Sandeep Kumar PW2 who medically examined the prosecutrix on 1st July, 2008 has given an opinion on 14th August, 2008 (Ex.PF) which is reproduced as under: “On 16.10.2008 after going through the chemical report Ex.PD on the application of the Police Ex.PE, I give the specific opinion in this case and my specific opinion is as under: 1. According to report of Chemical Examiner No.2435 dated 14.8.2008. 2. According to report of examination under Anesthesia CR-15993 of Department of Gynecology, Rajindra Hospital, Patiala, it does not suggest that sexual intercourse has not taken place. I have seen the report on the application of Police which bears my signatures. Same is Ex.PF. I gave the above mentioned opinion on the basis of report Ex.PG issued by the Department of Gynecologist and as per report no fresh bleeding was present. Hymen was torn no bleeding from edges. Vaginal admitted two fingers. Uterus retroverted normal in size.” 7. The opinion given by Dr. Sandeep Kumar PW-2 also indicates that it is a case of consent. The petitioner is in custody since 6th May, 2010. During trial also, he was on bail and never misused the concession of bail. 8. In view of the facts mentioned above and the fact that appeal may take some time in final decision as same is of the year 2010, no purpose would be served by keeping the applicant-appellant in custody. 9. During trial also, he was on bail and never misused the concession of bail. 8. In view of the facts mentioned above and the fact that appeal may take some time in final decision as same is of the year 2010, no purpose would be served by keeping the applicant-appellant in custody. 9. Accordingly, the application is allowed and sentence of applicant-appellant Sandeep Singh is suspended during the pendency of the appeal and he is directed to be released on bail on his furnishing bail bond and surety bond to the satisfaction of Chief Judicial Magistrate/ Duty Magistrate Patiala. 10. However, it is made clear that any observation made here-in-above shall not be construed as an expression of opinion on the merits of the case. ---------------