Crl.Appeal No.1120-SB of 2000 1 IN THE HON'BLE HIGH COURT PUNJAB AND HARYANA Crl.Appeal No.1120-SB of 2000 Date of decision 25.11.2010 Jitender alias Chintu and another ......Appellant Versus State of Haryana ......Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr.Kapil Aggarwal, Advocate for the appellant (In Crl.Appeal No.1053-SB of 2000). Mr. S.S. Behl, Advocate for the appellant (In Crl.Appeal No.1120-SB of 2000). Mr. Kshitij Sharma, AAG for Haryana. JITENDRA CHAUHAN,J. Jitender alias Chintu son of Brij Mohan and Chetan Parkash have preferred this appeal against the judgment of conviction and sentenced dated 20.10.2000/21.10.2000. The said appellants were convicted under Section 354 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of one year each and to pay a fine of `1000/- each under Section 354 IPC or in default of payment of fine to further undergo Rigorous Imprisonment for a period of one month. In criminal appeal No.1053-SB-2000 Manoj Kumar assailed the judgment of his conviction under Section 376 of the Indian Penal Code and sentence of seven years Rigorous Imprisonment and pay a fine of `5000/- for the commission of offence punishable under Section 376 IPC or in default of payment of fine to further undergo Simple Imprisonment for three months. It is proposed to disposed of both these appeals by way of single Crl.Appeal No.1120-SB of 2000 2 judgment as both arise out of the same judgment dated 20.10.2000/21.10.2000 passed by the learned Additional Sessions Judge, Jagadhri. Brief facts taken out from the judgment that Bir Singh, complainant, PW-4, father of the prosecutrix made a statement Ex.PB before Sub-Inspector, Dhanna Ram, PW-11 on 3.03.2000 at 6:00 p.m. at Bus Stand, Aurangabad. Wherein he has stated that he does labour work. On that day at about 5:00 p.m. when he came back to his house, his wife Anguri Devi and his daughter Rubi Devi disclosed him that when they had gone to bring fodder from the fields at about 3:00 p.m. The prosecutrix was cutting the fooder then Manoj Kumar and Chintu sons of Brij Mohan and Jitender son of Mangat Ram started teasing the prosecutrix. All the three boys forcibly caught the prosecutrix and tried to push her towards sugarcane fields. Her daughter made a noise on which the labourer from the brick-killn were attracted at the spot including Jagtar Singh, PW-3, they rescued prosecutrix from the accused and all the three accused ran away from the spot. Manoj, Chintu and Jitender teased the prosecutrix with bad intention. After recording statement Ex.PB, Sub-Inspector, Dhanna Ram, PW-11 sent this statement to the Police Station for registration of an FIR upon which ASI, Ramesh Chander, PW-7, recorded the FIR Ex.PG in the Police Station. The special report reached the Judicial Magistrate, Jagadhri on 4.03.2000 at 7:00 p.m. The medical examination of the prosecutrix was conducted by Dr.Neenu Kalra, PW-9 on 4.03.2000 at 3:15 p.m. Dr. Neenu Kalra, PW-9 on medical examination opined that possibility of inter course with the prosecutrix cannot be ruled out. The offence was converted to Section 376 IPC. Sub-Inspector, Dhanna Ram, Crl.Appeal No.1120-SB of 2000 3 PW-11 completed the investigation and submitted report under Section 173 Cr.P.C. against the accused. The learned Judicial, Ist Class committed the case to the Court of Session vide order dated 12.06.2000 for trial. The learned Additional Sessions Judge, Jagadhri framed charge against all the three accused under Section 356 IPC read with Section 34 IPC. A charge under Section 376 IPC was framed against Manoj Kumar accused. To prove its case the prosecution examined 12 witnesses. PW-1, H.C. Rishipal and PW-6, Constable, Surender Kumar tendered their respective affidavits Ex.PA and Ex.PF respectively. ASI, Ramesh Chander, PW-7, proved the recording of FIR. Raj Kumar, Patwari, PW-8 proved the scaled plan Ex.PH, which he prepared at police request Ex.PH/1 Constable Raghubir Singh, PW-10, as a witness to recovery memo PJ and Ex.PK. Head Constable Subhash Chand, PW-12 proved the sending of special report to the Judicial Magistrate. The prosecutrix while appearing as PW-2 deposed that accused Manoj took her to the sugar cane field forcibly and committed rape upon her. The other two accused remained standing outside the field. After rescuing herself from the accused Manoj, she came out of the sugar cane field and remaining accused Chinu and Chetan caught her. She raised alaram and on hearing alaram Jagtar, Mangal and Mukesh came there and rescued her. The accused ran away from the spot. She came back to her house and narrated the occurrence to her mother. At that time out of fear she did not disclose the fact of rape to her mother, but in the night she told her mother that accused Manoj had committed rape upon her. Her statement is corroborated by Jagtar Singh, PW-3, who rescued the prosecutrix from the clutches of the accused. Bir Singh father of the prosecutrix, PW-4, also supported the case of the prosecution. Crl.Appeal No.1120-SB of 2000 4 Learned counsel for the appellants vehemently asserted that the prosecution has deliberately withheld and supressed the material evidence from the Court. He further submitted that Chowkidar register bahi entry and mother of the prosecutrix has been withheld by the prosecution for reasons best known it. Learned counsel for the appellants argued that the investigation is tainted as no ossification test of the prosecutrix got done, which could prove the approximate age of the proseutrix. It would be unsafe to determine the age from oral evidence. It is further submitted that the presence of Jagtar Singh, PW-3, is unnatural and improbable. Learned counsel for the appellants further argued that the prosecutrix was a consenting party, and the prosecutrix was tutored by her parents to aggravate the offence. Learned counsel for the appellants further submitted that the prosecution has failed to prove its case against the appellants. On the other hand, the learned State counsel submits that the prosecution has fully proved its case. The prosecutrix has supported the case which is corroborated by Jagtar Singh, PW-3 and medical evidence. I have heard the learned counsel for the parties and scanned the evidence carefully with their assistance. First of all, it is worthwhile to mention here that there is serious flaw in the prosecution case. The police has failed to collect evidence during investigation regarding the age of the prosecutrix. The learned trial Court relied upon the oral statement of Bir Singh, PW-4, father of the prosecutrix wherein he has given the age of her daughter as 12-13 years. The prosecution has failed to produce any birth entry from the Chowkidar register or school certificate of the prosecutrix. As per Modi's Medical Jurisprudence, the test pertaining to ossification of bones is helpful for determining age, but the prosecution was not subjected to the ossification Crl.Appeal No.1120-SB of 2000 5 test to determine the approximate age of the prosecutrix. Bir Singh, PW-4, in his cross-examination stated that he got recorded the date of birth of the prosecutrix in the Chowkidar register. But this Chowkidar was neither examined nor any birth entry was produced. Another material flaw in the prosecution case is that the prosecution has withheld the mother of the prosecutrix which was the best witness to depose about the age of the prosecutrix. There is no corroboration to the statement of Bir Singh, PW-4, father by way of producing the mother of the prosecutrix. So the adverse inference is drawn that the prosecution is withholding the age of the prosecutrix from the Court. The prosecutrix while appearing as PW-2 stated in the cross examination that due to sugarcane crops she sustained abrasions of her back and had disclosed about those abrasions to the Medical Officer at the time of her medico-legal examination. But, Dr. Neeu Kalra, while appearing as PW-9 stated that there was no bite mark, scratch mark, bruise or abrasion on any part of the body of the prosecutrix except a small nail mark on the dorsom of nose at base. Thus, the statement of the prosecutrix of her having sustained abrasions on her back has not been proved by the prosecution. Further it is also submitted here that it is highly improbable and unbelievable that if the prosecutrix was raped by the appellant for about 20 minutes in the sugarcane field against her wishes, still she did not suffer any injury on her person. Dr. Neenu Kalra, PW-9, has stated that it is right to suggest that the prosecutrix was habitual to sexual intercourse. Thus it is clear from the statement of the Doctor that the age of the prosecutrix as has been given by the father of the prosecutrix is not correct and rather the prosecutrix is more than 16 years of age. As per the FSL report (Ex.PC), human semen was detected on Crl.Appeal No.1120-SB of 2000 6 the salwar (Ex.1a) and ladies shirt (Ex.1b) of the prosecutrix. However, semen could not be detected on the swab (Ex.P2) and public hairs (Ex.P3) of the prosecutrix. The semen detected on the underwear (Ex.P4) of the appellant Manoj Kumar. As per the serological analysis result of semen (Ex.PC/1) was of Group 'B', whereas the group of human Semen stains on the salwar of the prosecutrix was “Inconclusive”. Thus, it is highly doubtful that rape was committed upon the prosecutrix. The statement of prosecutrix, (PW-2), cannot be relied upon as she is a tutored witness or she has exaggerated the version. Intially the FIR was lodged for offence under Section 354/34 IPC on 3.03.2000. Later on the supplementary statement was given by the complainant regarding the offence of rape having been committed upon the prosecutrix, whereupon the offence under Section 376 IPC was added on 4.03.2000. Thus, this material improvement in the statement of the complaint further creates a considerable doubt on the genuineness of the prosecution story. The presence of Jagtar Singh, PW-3, is unnatural. Jagtar Singh, PW-3 stated that they heard the cries of a child for about 10-15 minutes and thereafter, they heard noise "bachao bachao" which continued for about 10-15 mintues. The prosecutrix also stated in her cross-examination that she was kept in the sugarcane field approximately for 20 minutes. The brick Kiln is about 20 yards away from the fodder fields. On raising alarm three persons namely Jagtar Singh, PW-3, Mangla and Mukesh came there and rescued her. The said Jagtar Singh was examined as PW-3, whereas other two persons namely Mangla and Mukesh were withheld by the prosecution. The said Mangla and Mukesh were given up by the prosecution on 12.09.2002. So adverse inference has to be drawn against the prosecution. The cumulative effect of all the above circumstances, is that the Crl.Appeal No.1120-SB of 2000 7 prosecution has failed to prove the case beyond reasonable doubt, so the benefit of doubt is to be given to the accused-appellants. Resultantly, criminal appeal No.1120-SB of 2000 and criminal appeal No.1053-SB of 2000 are allowed, a conviction and sentence of the appellants in both the appeals, are set aside and they are acquitted of all the charges framed against them. November 25, 2010 (JITENDRA CHAUHAN) Jyoti 1 JUDGE Note: Whether to be referred to reporter? Yes/No