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2014 DIGILAW 1532 (PNJ)

RAVINDER KUMAR v. STATE OF PUNJAB

2014-11-12

JITENDRA CHAUHAN

body2014
JUDGMENT : Jitendra Chauhan, J. Appellant, namely, Ravinder Kumar, has filed this appeal against the judgment dated 29.04.2011, passed by the learned Additional Sessions Judge, Jalandhar, vide which, the appellant was convicted under Sections 363, 366, 376 IPC. The brief facts of the case are that the daughter of Babu Ram aged about 13 years, resident of House No. 355, Jaswant Nagar, Jalandhar, was found missing from the house on 09.07.2010 at about 07:00 P.M., after he returned from his duties. On 15.07.2010, Babu Ram went to SI Malkiat Singh of Police Station Division No. 7 and made statement that it was confirmed that his daughter was kidnapped by Chandan Kumar (since proclaimed offender) and accused Ravinder Kumar, aforesaid, played active role in such kidnapping. SI Malkiat Singh registered FIR under Section 363, 366 and 120-B of IPC against the accused and started investigation. The victim girl was recovered and on 18.07.2010, she was produced before the learned Judicial Magistrate where she made statement which after translating from Punjabi to English is reproduced as under:- "My name is .... (not to be disclosed). My father's name is Babu Ram. I am resident of Jaswant Nagar. I fell in love with Chandan. I requested Chandan to take me along. Chandan refused but I kept on requesting him on the ground that in the next month I was going to be married. He took me to Ludhiana. We stayed there for a day. Ravinder also accompanied us. Ravinder sent her at 10:00 A.M., to accompany him in order to see Chandan. Ravinder did not take me to Chandan. I requested him to ring Chandan. Then he took me to the house of his relative where 2-3 boys were putting up. Chandan did not find me. He rang Ravinder but Ravinder did not reply his phone. Then Ravinder committed rape on my person. I kept on stopping him from doing so but he did not agree. He also pressed my neck. I then ran from there and Chandan met me at Samrala Chowk. Ravinder told me not to disclose any thing to Chandan. I replied in affirmative. One day Ravinder told us to accompany him for work. We did so. There Ravinder again threatened me that he would not allow me to meet Chandan failing which I would be killed by burning. Ravinder told me not to disclose any thing to Chandan. I replied in affirmative. One day Ravinder told us to accompany him for work. We did so. There Ravinder again threatened me that he would not allow me to meet Chandan failing which I would be killed by burning. Then I and Chandan ran away and lived in a rented room at Ludhiana. Then Chandan told me that he would marry me on my attaining the age of 18 years. Then Chandan made to board the bus for my coming to my house. Then I returned to my house." 2. After recording the aforesaid statement before the learned Judicial Magistrate, the victim was sent with her parents. SI Malkiat Singh then added offence under Section 376 IPC by way of lodging report in the roznamcha. X-ray examination to ascertain her age was also conducted. Vaginal swabs were preserved and sent to the Chemical Examiner. According to the Chemical Examiner Report, spermatozoa was detected on the vaginal swabs. Accused-Ravinder Kumar was arrested. After completion of entire investigation, accused Ravinder Kumar was challaned to face trial under Sections 363, 366, 376 and 120-B IPC. 3. After commitment of the case to the Court of Sessions, the charge under Sections 363, 366 and 376 IPC was framed-against the accused, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined, Dr. Satinder Pawar, Medical Officer as PW-1, Victim daughter of Babu Ram as PW-2, Babu Ram as PW-3, SI Malkiat Singh as PW-4, Dr. Jasmeet Walia as PW-5, Dr. Varinder Kaur, Medical Officer as PW-6, H.C. Kamaljit Singh as PW-7 and HC Sohan Lal as PW-8. 5. After the conclusion of evidence of prosecution, the statement of appellant-accused was recorded under Section 313 Cr.P.C. and the entire incriminating evidence which the prosecution produced against him was put to him to tender explanation for the same. The appellant-accused pleaded his innocence and he also stated that he has been falsely implicated in the present case at the instance of Gaurav and Pandit who have influence over PW-2 and PW-3. However, no evidence was led in defence by the appellant-accused. 6. The learned trial Court, after hearing learned counsel for the parties and after appreciating the evidence on record, convicted and sentenced the appellant-accused as under:- 7. However, no evidence was led in defence by the appellant-accused. 6. The learned trial Court, after hearing learned counsel for the parties and after appreciating the evidence on record, convicted and sentenced the appellant-accused as under:- 7. Feeling dissatisfied with the judgment of conviction and order of sentence dated 29.04.2011, the accused/appellant has preferred the present appeal, which was admitted on 10.05.2011. 8. The learned counsel for the appellant contends that there is no evidence on record with regard to the age of the prosecutrix. The only evidence produced by the prosecution is the statement of PW-1, Dr. Satinder Pawar, Medical Officer, Civil Hospital, Jalandhar, who had examined the prosecutrix regarding her age from her teeth and had given his opinion that she was 14/15 years of age. However, in his cross examination, he admitted that there are always variations regarding the development of teeth and bone of human beings due to different climatic conditions. PW-5, Dr. Jasmeet Walia, Radiologist, who had conducted ossification test on the person of the prosecutrix. Based on the said evidence, the prosecution took the plea that the prosecutrix was aged less than 16 years. The said plea of the prosecution is legally un-sustainable because prosecution has not proved any documentary evidence on record, whereby it could be ascertained that she was minor on the day of occurrence. As per the prosecutrix also, she had herself asked Chandan Kumar to take her along with him to Ludhiana as they were in love with each other. According to the prosecutrix, the appellant-Ravinder Kumar had merely accompanied them. As per the prosecutrix, they all had gone to Ludhiana on 09.07.2010. Her further plea is that she was raped by the appellant on 10.07.2010, but, she did not disclose anything about the said incident to Chandan Kumar. Her further case was that thereafter, she ran away along with Chandan Kumar and remained with him for about 6 days during which period she was raped by Chandan Kumar. Under these circumstances, it is clear that there is no evidence which even remotely suggest that the appellant had committed rape upon the prosecutrix. Learned counsel for the appellant further contends that no medical examination of the appellant/accused was conducted. There are material discrepancies in the statement of prosecution witnesses which go to the root of the matter rendering the prosecution story doubtful. 9. Learned counsel for the appellant further contends that no medical examination of the appellant/accused was conducted. There are material discrepancies in the statement of prosecution witnesses which go to the root of the matter rendering the prosecution story doubtful. 9. It is further the case of prosecution that the prosecutrix was allegedly kidnapped on 09.07.2010. The complainant Babu Ram, came to know about the said fact when he came to his house from his job in the evening. He also claimed that he knew that Chandan Kumar and Ravinder Kumar had kidnapped his daughter. However, he lodged the FIR after 6 days i.e. on 15.07.2010. No explanation is forth coming from the prosecution for the said delay. On this ground also, appellant is entitled to acquittal. 10. After the prosecutrix had been examined in the Court, she appeared in Court with his counsel and moved an application on 26.04.2011, for granting her an opportunity for giving statement again. Contents of the said application have been reproduced as under:- "Application for granting opportunity to the applicant/PW-2 for giving statement again. Sir, It is respectfully submitted as under: 1. That the above mentioned case is pending trial before this Hon'ble Court. 2. That on 06.01.2011 the applicant suffered statement under pressure. In fact, the applicant was having no intention to give such statement as recorded in the Court in the examination in chief as well as in the cross-examination. 3. That the applicant/PW-2 wants to suffer her statement in the Court again to bring the truth before the Court for proper justice and proper adjudication of the case. 4. That in fact, Ravinder Kumar never committed any rape or attempted to rape upon the applicant. The statement of the applicant is very much important in the given circumstances. It is therefore, respectfully prayed that the application may kindly be allowed by granting opportunity to the applicant/PW-2 for giving her statement, again, in the interest of justice." 11. As per the said application, the prosecutrix categorically submitted that the appellant had neither committed any rape upon her nor had he ever attempted to rape her. The contents of the said application clearly show that appellant was not at fault in any manner, however, the ld. trial Court ignored the said application and wrongly convicted the appellant. 12. As per the said application, the prosecutrix categorically submitted that the appellant had neither committed any rape upon her nor had he ever attempted to rape her. The contents of the said application clearly show that appellant was not at fault in any manner, however, the ld. trial Court ignored the said application and wrongly convicted the appellant. 12. On the other hand, learned State Counsel contends that the prosecutrix in the instant case was less than 16 years of age. Even, as per the ossification test, report Ex. P-1, which was prepared by PW-1, Dr. Satinder Pawar and the testimony of the PW-5, Dr. Jasmeet Walia, Radiologist the age of the prosecutrix was assessed as 14-15 years. Therefore, the argument that it is a case of consent does not hold any ground. The accused-appellant helped the co-accused, Chandan in kidnapping the prosecutrix. She was taken to Ludhiana where on finding an opportunity and in the absence of Chandan, the accused appellant committed forcible sexual intercourse upon her. The statement of PW-2, Dr. Satinder Pawar is sufficient to prove the case of the prosecution. 13. I have heard the learned counsel for the parties and have gone through the record with their able assistance. 14. In the instant case, the only evidence produced by the prosecution regarding the age of the prosecutrix is PW-1, Dr. Satinder Pawar, Medical officer, Civil Hospital, Jalandhar, who had examined the prosecutrix regarding her age from her teeth and had given his opinion that she was 14 to 15 years of age. However, in his cross-examination, he admitted the fact that there are always variations regarding the development of teeth and bone of human beings due to different climatic areas. According to the prosecutrix, the appellant-Ravinder Kumar had merely accompanied them to Ludhiana on 09.07.2010. Her further plea was that she was raped by the appellant on 10.07.2010, but, she did not disclose anything about the said incident to Chandan Kumar. Thereafter, she ran away along with Chandan Kumar and remained with him for about six days during which period she was raped by Chandan Kumar. Under these circumstances, it is clear that there is no evidence to even remotely suggest that the appellant had committed rape upon the prosecutrix. As per the admitted case of the prosecution, no medical examination of the appellant-accused-Ravinder Kumar was conducted. Under these circumstances, it is clear that there is no evidence to even remotely suggest that the appellant had committed rape upon the prosecutrix. As per the admitted case of the prosecution, no medical examination of the appellant-accused-Ravinder Kumar was conducted. This is in utter violation of the provisions of Section 53-A of Criminal Procedure Code as the said provision has been held to be mandatory. Reference in this regard can be made to the judgment titled as 2013 (3) Cr.C.C. 549. As per prosecution version, the prosecutrix was allegedly kidnapped on 09.07.2010 but the complainant-Babu Ram lodged the FIR after six days i.e. on 15.07.2010. As per the application moved by the prosecutrix, she has categorically stated that the appellant had neither committed any rape upon her nor had he ever attempted to rape her. 15. In view of the statement, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt. The appellant is, therefore, entitled to the benefit of doubt. Keeping in view the above facts and circumstances, the present appeal stands allowed and the judgment dated 29.04.2011, passed by the learned Additional Sessions Judge, Jalandhar, is set aside and the accused-appellant is acquitted of the charges.