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2014 DIGILAW 1242 (PNJ)

Nibbu v. State of Haryana

2014-09-02

K.C.PURI

body2014
Karam Chand Puri, J. 1. Nibbu-accused-appellant has directed the present appeal against the judgment dated 09.09.2004 and order dated 10.09.2004 passed by Shri B.M. Bajaj, learned Additional Sessions Judge, Fast Track Court, Gurgaon vide which he stood convicted under Sections 363, 366 and 376 of the Indian Penal Code (in short -the IPC) and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months for offence under Section 363 of the IPC; further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months for offence under Section 366 of the IPC and further sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months for offence under Section 376 of the IPC. However, all the sentences were ordered to run concurrently. Brief facts of the prosecution case are that on 10.10.2003 Ramesh complainant presented an application before the police alleging that his daughter (prosecutrix) was kidnapped on 8.9.2003 by Nibbu accused by giving false allurements. Complainant though made efforts to search her but in vain. Therefore, on the basis thereof case was registered against the accused. On 11.10.2003 at Rajiv Chowk Nibbu accused with prosecutrix was found standing by the police party accompanying the complainant and after seeing the police the accused ran away. He was taken into custody and got medico-legally examined. Various proceedings were conducted at the spot. Site plan of the place of occurrence was prepared. Statements of the PWs were recorded. After completion of necessary investigation, challan against the accused was presented. 2. On appearance of the accused, copies of documents were supplied to the accused free of costs. Charge under Sections 363, 366 and 376 of the IPC was framed against the accused to which he pleaded not guilty and claimed trial. 3. In order to prove its case, prosecution examined MHC Ismael Khan (PW-1), ASI Jai Parkash PW-2, Manoj Kumar Draftsman (PW-3), Dr.B.B. Aggarwal PW-4, (PW-4), Ramesh (PW-5), prosecutrix herself appeared as (PW-6), Dr. Charge under Sections 363, 366 and 376 of the IPC was framed against the accused to which he pleaded not guilty and claimed trial. 3. In order to prove its case, prosecution examined MHC Ismael Khan (PW-1), ASI Jai Parkash PW-2, Manoj Kumar Draftsman (PW-3), Dr.B.B. Aggarwal PW-4, (PW-4), Ramesh (PW-5), prosecutrix herself appeared as (PW-6), Dr. Subhash Sindhu (PW-7), Constable Manish Kumar (PW-8), Dr. Mrs. Renu Sharma, Medical Officer (PW-9), ASI Ajit Singh (PW-10) and closed the prosecution evidence. 4. In his statement recorded under Section 313 Cr.P.C., accused denied all the incriminating circumstances appearing against him. Accused was called upon to lead defence evidence but he did not lead any evidence in defence and closed the same. 5. The trial Court, after hearing the learned counsel for the parties vide the judgment dated 09.09.2004 and order dated 10.09.2004, convicted and sentenced the accused as aforesaid. 6. Feeling dissatisfied with the aforesaid the judgment dated 09.09.2004 and order dated 10.09.2004, the present appeal has been filed. 7. I have heard learned counsel for the parties and have gone through the records of the case with their able assistant. 8. Learned counsel for the appellant has submitted that as per allegations prosecutrix was enticed away by the accused/appellant on 8.9.2003. However, the FIR was registered only on 10.10.2003 i.e., after a period of one month and one day. The prosecutrix has narrated her age as 20 years to the Doctor, who has been examined as PW-9 namely Mrs. Renu Sharma. This was the first occasion to narrate about the age of the prosecutrix. The first occasion arose with the prosecution to narrate the age of the prosecutrix was in the form of application by Ramesh, father of prosecutrix, which has been proved on record as Ex. PB. In the said application age of the prosecutrix has not been mentioned. Thereafter ossification test in respect of the prosecutrix was conducted and according to the opinion of the doctor, Dr.B.B. Aggarwal PW-4, the age of the prosecutrix was between 16-16 ½ years. In the cross-examination, this witness has stated that age of the prosecutrix could be varied upto two years. So, in case the said variation is taken into account then prosecutrix was major. 9. In the cross-examination, this witness has stated that age of the prosecutrix could be varied upto two years. So, in case the said variation is taken into account then prosecutrix was major. 9. Learned counsel for the appellant has further submitted that prosecutrix remained with the accused for a period of one month and two days at different places i.e. at Delhi and Uttar Pradesh. According to the prosecutrix herself, she travelled with the appellant at different places in the Bus. So, there was occasion for the prosecutrix to raise grievance against the appellant but she has not raised any little finger during the period of one month and two days and even during the course of long journey. Under similar circumstances, this Court in following authorities acquitted the accused:-- "(i) Avdesh v. The State of Haryana reported in 2010 (4) RCR (Criminal) page 154; (ii) Rakesh v. State of Haryana reported in 2006 (4) RCR (Criminal) page 505 and (iii) Sagar Kumar v. State of Haryana reported in 2011(1) RCR (Criminal) page 620." 10. It was observed in these rulings that when there are two views in respect of age of the prosecutrix, in that case, view favourable to the accused has to be taken into account. So, the prosecutrix was major and consenting party at the time of alleged occurrence and no case is made out against the accused/appellant. 11. The learned State counsel has supported the judgment and order of the trial Court and has submitted that accused-appellant has threatened the prosecutrix. She was not able to make rational judgment in respect of sexual intercourse. She was subjected to rape under threat. So, the conviction recorded by the trial Court does not call for any interference. 12. I have considered the submissions made by both the sides and have gone through the records of the case. 13. The learned trial Court after appreciating the evidence on the file reached to the conclusion that prosecutrix was about 16 years of age. The said finding of the trial Court is based upon the statement of father of the prosecutrix as well as on the basis of ossification test. No birth certificate has been placed on the record. Dr.B.B. Aggarwal PW-4, has given the opinion that prosecutrix, as per ossification test can be between 16 and 16 ½ years of age. The said finding of the trial Court is based upon the statement of father of the prosecutrix as well as on the basis of ossification test. No birth certificate has been placed on the record. Dr.B.B. Aggarwal PW-4, has given the opinion that prosecutrix, as per ossification test can be between 16 and 16 ½ years of age. In the cross-examination, he has stated that there can be variation of two years in respect of the age of the prosecutrix. 14. In authorities Avdesh' case (supra); Rakesh' case (supra) and Sagar Kumar' case (supra), this Court has observed that where there is opinion of the doctor that variation in the age of the prosecutrix is two years, in that case, the view favourable to the accused in respect of age of the prosecutrix should be taken. 15. So, in view of the above authorities Avdesh' case (supra); Rakesh' case (supra) and Sagar Kumar' case (supra), age of the prosecutrix can be taken as 18-18 ½ years. In the report Ex. PB, which formed the basis of FIR, age of the prosecutrix has not been mentioned. Thereafter, prosecutrix has stated to be appeared before Dr. Mrs. Renu Sharma (PW-8), who has stated that prosecutrix has given her age as 20 years. So, in case the evidence of Dr. Mrs. Renu Sharma (PW-8), is taken into consideration, then it can be safely inferred that prosecutrix was major at the time of occurrence. 16. Admittedly, prosecutrix remained with the accused for one month and two days and she travelled in the bus to Delhi during the said period. She also travelled with the accused to Utter Pradesh. In these long journeys, prosecutrix has not raised little finger against the accused. She has stated that she remained with the accused in a rented premises at Delhi. There also she had the occasion to raise her grievance against the accused. The story of threat is missing in the original version given by the prosecutrix. 17. This Court in authorities Avdesh' case (supra); Rakesh' case (supra) and Sagar Kumar' case (supra), acquitted the accused where she was more than 16 years of age and had remained with the accused for number of days without raising any grievance against the accused. 18. So, from whole of the evidence, it can be safely inferred that prosecutrix was a consenting party. 19. 18. So, from whole of the evidence, it can be safely inferred that prosecutrix was a consenting party. 19. In view of the above finding, the judgment and order of the trial Court does not sustain the test of legal security. 20. Consequently, the appeal stands accepted. The judgment and order of the trial court stand set aside and accused stands acquitted by giving him benefit of doubt. A copy of this order be conveyed to the trial Court for strict compliance.