Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1227 (PNJ)

Baldev Kumar v. State (Chandigarh Administration)

2013-09-12

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. 1. This appeal is directed against the judgment of conviction dated 25.11.2009, passed by the Additional Sessions Judge, Chandigarh, vide which the accused/appellant Baldev Kumar, was convicted for the offence punishable under Section 363, 376 of the Indian Penal Code (hereinafter called as 'IPC') and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 7000/- or in default of payment thereof, to further undergo RI for a period of two months under Section 376 of IPC, RI for a period of three years and to pay a fine of Rs. 5000/- or in default of payment of fine to further undergo RI for one month under Section 366 of IPC and under Section 346 of IPC to further undergo RI for one year. The case of the prosecution as per judgment of the trial Court is as under:- On 15.11.2008, at about 7.30 A.M. minor prosecutrix had gone missing from her house when she had gone to school. Her father submitted an application Ex. PD to the police on 17.11.2008 and on its basis D.D.R. No. 25 dated 17.11.2008 was entered in the daily diary register. On 18.11.2008 the father of the prosecutrix namely Major Singh suffered statement Ex. PE and disclosed that his daughter has been kidnapped by accused Baldev Kumar. The police made endorsement Ex. PK beneath the statement of Major Singh and on its basis formal FIR Ex. PL was registered. Copy of the same was sent to Area Magistrate who received the same on 19.11.2008 at 10.00 A.M. The police made hectic efforts to search out the prosecutrix but she could not be found. On 28.04.2009, S.I. Ranjit Singh accompanied by informant Major Singh and lady Constable Narsh Kumari was patrolling at the Sukhna Lake, Chandigarh. They spotted that the accused and the prosecutrix were sitting on the lake, however, the prosecutrix was in highly perturbed condition. She was identified by her father Major Singh and was recovered vide memo Ex. PE. Accused was arrested at the same time vide personal search memo Ex. PF. The prosecutrix was produced in the hospital for getting her medically examined at about 6.00 PM on 28.04.2009, however, however the accused was also produced in the hospital for conducting his medical examination on the same day. PE. Accused was arrested at the same time vide personal search memo Ex. PF. The prosecutrix was produced in the hospital for getting her medically examined at about 6.00 PM on 28.04.2009, however, however the accused was also produced in the hospital for conducting his medical examination on the same day. Police recorded the statement of prosecutrix under Section 161Cr.P.C. Rough site plan Ex. PM of the place from where the prosecutrix was kidnapped was also prepared. Another site plan Ex. PN was prepared of Sukhna Lake area from where the accused and the prosecutrix were recovered. Blood sample of the accused and the prosecutrix were collected from the hospital and were sent to CFSL. After the medical examination of the prosecutrix the doctor handed over four sealed parcels containing vaginal swabs, blood sample and pubic hair of the prosecrutix, one more scaled parcel containing black shirt, black salwar, white bra, and navy blue panty of the prosecutrix was handed over to the I.O. Other document were also handed over to the police. However on that day prosecutrix was sent to Nari Niketan. On 05.05.2009, she was produced before Judicial Magistrate fro recording her statement and she suffered statement Ex. D2 and stated that she had gone with the accused with her free consent. After the conclusion of investigation, challan against accused was presented in the Court. 2. On commitment, the accused was charged under Section 363, 366, 376 of IPC, to which the accused/appellant pleaded not guilty and claimed trial. 3. In support of the case of prosecution, it examined P.W.-1 Amarjit Kaur, Principal of Govt. Senior Secondary School, Manimajra, Town, Chandigarh; P.W.-2 H.C. Santosh Kumar; P.W.-3 Father of the prosecutrix; P.W.-4 Constable Baljit Singh; P.W.-5 Dr. Ruby Oberoi, Radiologist, General Hospital, Sector 16, Chandigarh; P.W.-6 Laxmi Devi, mother of the prosecutrix; P.W.-7 Prosecutrix; P.W.-8 Dr. Rajiv Dosanjh; P.W.-9 Dr. Jaya Batish; P.W.-10 S.I. Ranjit Singh. 4. P.W.-1 Amarjit Kaur, Principal of Govt. Senior Secondary School, Manimajra Town, Chandigarh, testified the date of birth of the prosecutrix as per the school record. 5. P.W.-2 HC Santosh Kumar testified the articles of case property produced before him in intact condition. 6. P.W.-3 Father of the prosecutrix testified the kidnapping of his daughter and her age a 14 years. 7. P.W.-4 Constable Baljit Singh also testified the sample parcels in intact condition to CFSL, Chandigarh. 8. P.W.-5 Dr. 5. P.W.-2 HC Santosh Kumar testified the articles of case property produced before him in intact condition. 6. P.W.-3 Father of the prosecutrix testified the kidnapping of his daughter and her age a 14 years. 7. P.W.-4 Constable Baljit Singh also testified the sample parcels in intact condition to CFSL, Chandigarh. 8. P.W.-5 Dr. Ruby Oberoi, Radiologist proved her bone age between 16 1/2 to 17 years. 9. P.W.-6 Laxmi Devi, mother of prosecutrix proved the date of birth of the prosecutrix. 10. P.W.-7 Prosecutrix herself narrated her tale. 11. P.W.-8 Dr. Rajiv Dosanjh conducted the medical examination of accused and gave opinion that accused was capable of performing the sexual intercourse. 12. P.W.-9 Dr. Jaya Batish had medically examined the prosecutrix on 28.04.2009. 13. P.W.-10 S.I. Ranjit Singh, Investigating Officer, proved the manner of investigation. 14. The statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence and alleged false implication. He, however, did not lead any evidence in his defence. 15. After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore. 16. Feeling aggrieved, against the judgment of conviction delivered by the trial Court, the instant appeal was filed by the accused/appellant which was admitted on 05.05.2010. 17. Learned counsel for the appellant argued that the learned trial Court has misread the evidence of the prosecution; the prosecution has failed to prove the case against the appellant, and no offence is made out against the appellant. He further argued that the prosecutrix was a matured girl, who in fact persuaded the appellant being her friend to go to Nepal. 18. On the other hand, the learned State counsel submits that the prosecution has fully proved its case against the accused/appellant. 19. This Court has scrutinized the lower Court record carefully with the able assistance of the parties. 20. The statement Ex. D2 of the prosecutrix recorded under Section 164 of the Code on 05.05.2009 by the Judicial Magistrate 1st Class (Duty) is reproduced hereunder:- Statement under Section 164 Cr.P.C. of Binder Devi D/O Major Singh, 301, near Railway Pathak, P.W.T, Manimajra, Chandigarh Q. What happened on 15.11.2008? At about 7.30 A.M., I went for roaming with a boy named Baldev with my own free will take him towards Nepal. At about 7.30 A.M., I went for roaming with a boy named Baldev with my own free will take him towards Nepal. Q. Have that boy induced you to many him? No, he is my friend. We went for roaming. Q. Where have you gone and where have you stayed? We went to Bapu Dham and we stayed there by taking a room on rent. I want to marry him. We have not married each other till now. Q. Have he induced you? No. I went of my own will. The boy is not at fault. My parents used to hate me. Q. Have you anything else to state? No. I want to live with my parents till the age of my discretion. 21. In her statement under Section 164 of Cr.P.C. Ex. D2, of the prosecutrix recorded on 05.05.2009, by the Judicial Magistrate 1st Class (Duty), she had stated that on 15.11.2008, at 7.30 A.M., she went away with a boy named Baldev (the accused/appellant herein); that she with her own volition brought him to Nepal; the boy did not induce her to marry; the boy is her friend and they went for roaming. On the question put by the Magistrate with regard to place visited and the accommodation used, she replied that they had been residing at Bapu Dham after taking a room on rent and that she want to marry him but still they are unmarried. While replying to the question of inducement, she specifically stated that the boy was innocent and that her parents hated her. She choose to live with her parents till she attains the marriageable age. 22. Importantly, in her statement Ex. D2 under Section 164 of Cr.P.C. neither the learned Magistrate elicited the age from the prosecutrix nor she herself told her age. This is the first version before the Court of law and this Court has no reason to disbelieve it (Ex. D1). Thereafter, she went to the custody of her parents. Thereafter, she was made to depose against all the family members of the accused-appellant. Surprisingly, after one year, in her statement recorded in Court on 17.11.2009, she roped every member of the family of the accused/appellant by assigning a specific role to each one of them. But, when this Court read the cross examination of the proxecutrix, it clearly emerges that it to a case of consent. Surprisingly, after one year, in her statement recorded in Court on 17.11.2009, she roped every member of the family of the accused/appellant by assigning a specific role to each one of them. But, when this Court read the cross examination of the proxecutrix, it clearly emerges that it to a case of consent. In this age of electronic media, the under age girls know the consequences of their act, conduct, behavior and sexual relations with someone. Age does not matter in every case. She is not a rustic village girl. Her cross examination reveals that she met the boy on a public road in the morning. It is not believable that at about 7.30 A.M., nobody was on the road. The story of putting handkerchief on her mouth is absolutely a concoction. 23. On the one hand she said that it was school time, on the other, she said nobody was present on the road. We all know that there is always traffic at school times on road. She remained with the accused/appellant from 15.11.2008 to 28.04.2009, she traveled through road and trains. She admitted that when they alighted from train, there was crowd of passengers, but she could not raise any alarm, because she was puzzled. On the date of her capture by the police at Sukhna Lake, she goes to say that from Railway Station, Chandigarh to Lake journey, the accused/appellant did not give her any threat on 28.04.2009. Immediately, after her medical examination, and her capture by the police, she was sent to Nari Nikctan for some days. 24. On 05.05.2009, when her statement Ex. D-1, under Section 164 of Cr.P.C. was recorded, she was brought from the Nari Niketan by the police and was produced before the Judicial Magistrate 1st Class. Sealed envelope of her statement was opened in open Court on 17.11.2009, during her cross examination. She identified her signatures, but denied to suffer statement under Section 164 of Cr.P.C. Ex. D-2, before the Magistrate. She admitted in the cross examination to have stated in her statement under Section 164 of Cr.P.C. that Baldev was her friend, she had gone with him on a trip, they stayed at Bapu Dham Colony and that she wanted to marry the accused. Her volunteered explanation to this part of statement was that she stated so to save her life. Her volunteered explanation to this part of statement was that she stated so to save her life. She also admitted that before the Magistrate, she said that the accused had not taken her out rather, she had gone with him. From the reading of the statements of the prosecutrix in Court, it becomes clear that it is not a case of stray incident, but the proxecutrix remained with the accused/appellant from 15.11.2008 to 28.04.2009 at various placed at Chandigarh and Nepal. She could have make a hue and cry attracting passerby, passengers and police at public places like railway station, but stand or public roads. Thus, the story put forth by the prosecution does not inspire confidence and accordingly not accepted. 25. So far as charge under Section 346 of the Indian Penal Code is concerned, as discussed above, there was no confinement at all what to talk of solitary confinement being there seems unimaginable. In the first version of the prosecutrix in her statement under Section 164 of Cr.P.C. which is voluntary, without any coercion or duress, there is no allegation of rape against the accused/appellant. The tutored version deposed in Court is being ignored as there are material improvements in the statement of the prosecutrix. The version recorded by the Magistrate in her statement under Section 164 Cr.P.C. has been proved by the prosecutrix herself during cross examination. At every stage of journey or stay, there were chances of escape, but she remained loyal companion of the accused/appellant. At railway station, the police is available round the clock. If she would have made any hue and cry for resistance, at public places, it might have attracted the attention of large number of people from the locality. The stay of the prosecutrix with the appellant itself was so long that belies the case of the prosecution. 26. It is a settled proposition of law that sole testimony of prosecution can be relied upon. But that can only be done where the conscience of Court is convinced about the truthfulness of the prosecutrix version and there is no shadow of any doubt over the veracity of her statement before the Court. But, in this case, the first version recorded under Section 164 of Cr.P.C. is believable and the statement of prosecutrix P.W.-7 in Court is unbelievable, untrustworthy and unreliable. No reliance can be placed on it. Both are absolutely irreconcilable. But, in this case, the first version recorded under Section 164 of Cr.P.C. is believable and the statement of prosecutrix P.W.-7 in Court is unbelievable, untrustworthy and unreliable. No reliance can be placed on it. Both are absolutely irreconcilable. 27. Coming to the point of age of the prosecutrix, no birth certificate is produced by the prosecution. P.W.-5 Luxmi Devi, mother of the prosecutrix admitted in her cross examination that she got registered the name of the prosecutrix with the Registrar of Birth and Death. The affidavit Ex. PA cannot be believed as the prosecution has withheld the best documentary evidence of birth certificate for the reasons best known to it. Ossification lest Ex. PG is the next adjudicating proof of age of the prosecutrix. P.W.-5 Dr. Ruby Oberoi proved the bone age of the prosecutrix between 16½ to 17 years, as on 24.09.2009. There may be variation of two years on either side. It may be 19 years as well. If two views are possible with regard to a particular circumstances, the benefit may be given to the accused of that favourable circumstances. So, the age of the prosecutrix is held to be 19 years by drawing the adverse inference of withholding the original birth entry of the prosecutrix by the prosecution especially when the mother of the prosecutrix admits that she got her birth registered with the Registrar of Births. So, the consent of the prosecutrix is to be given weight while weighing the evidence in golden scale of justice. The age of the appellant at the relevant time as per record was 21 years. 28. For the reasons recorded above, it is held that the prosecution has failed to prove its case against the accused/appellant beyond a reasonable shadow of doubt, the benefit of doubt is extended to the appellant. Accordingly, the present appeal is accepted, the judgment of conviction, and order of sentence passed upon the accused/appellant Baldev Kumar, reflected in the opening para are set aside. He stands acquitted of the charges leveled against him by giving him the benefit of doubt. He is in custody. He be released forthwith, if not required in any other case. The appeal stands allowed. Appeal allowed.