Criminal Appeal No. 596-SB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Criminal Appeal No. 596-SB of 2000. Date of Decision : 7.12.2010. Jeet Pal ...... Appellant Versus Union Territory, Chandigarh ....Respondent (2) Criminal Appeal No. 1560-SB of 2002. Date of Decision : 7.12.2010. Sanjay ...... Appellant Versus Union Territory, Chandigarh ....Respondent (3) Criminal Appeal No. 740-SB of 2000. Date of Decision : 7.12.2010. Joginder Singh ...... Appellant Versus Union Territory, Chandigarh ....Respondent CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present:- Mr. D.S. Ganeriwal, Advocate & Mr. Mahesh Grover, Advocate, for the appellants. Mr. Hemant Bassi, Advocate, for the Union Territory, Chandigarh. NAWAB SINGH J.(ORAL) This judgment would dispose of above named three appeals filed by Jeet Pal, Sanjay and Joginder Singh arising out of judgment of conviction and order of sentence dated May 11th, 2000 passed by Additional Sessions Judge, Chandigarh, whereby, they were sentenced as under:- Offence Sentence Fine In default 363 IPC 2 years Rs.500/- RI for 1 month 366 IPC 5 years Rs.1000/- RI for 2months 376(2)(g) IPC 10 years Rs.1000/- RI for 2 months Criminal Appeal No. 596-SB of 2000. 2 2. Prosecution case is that on August 2nd, 1998 at about 11 a.m. prosecutrix (PW-2) was going to her house situated in Phase 10, Mohali. Appellants met her. They asked her to accompany them stating that her mother had fallen ill. She accompanied them. Joginder and Jeet Pal were related to her. Sanjay was also known to her. Prosecutrix and the accused- appellants were residing in the huts (jhugis) in the same locality. They took her to hut of Akshay alias Parkash (PW-9). Joginder took her inside the hut. Sanjay and Jeet Pal locked the hut from outside. Joginder raped her. She resisted but could not succeed. 3. On August 4th, 1998 she accompanied her father to the Police Station. Kewal Krishan Sub-Inspector Police Station South Chandigarh (PW-10) met them at the barrier of Sector 45 and 46, Chandigarh. Statement of the prosecutrix (Exhibit PB) was recorded. Investigator appended his endorsement (Exhibit PB/1). On the basis of statement, First Information Report (Exhibit PB/2) was registered against the accused-appellants in Police Station South Chandigarh. Investigator reached the spot and prepared rough site plan (Exhibit P-1). The prosecutrix was medically examined by Dr. Usha Bansal (PW-8). The accused-appellants were arrested on August 12th, 1998. On completion of the investigation and other formalities, the accused were arraigned for trial. 4. Charge, in respect of offences punishable under Sections 363, 366 and 376(2)(g) IPC was framed against the accused-appellants. They did not plead guilty and claimed trial. 5. The prosecution in support of their case, examined 12 witnesses. These were: Dr. Bidhi Chand (PW-1), Babli (PW-2), Gaje Pal (PW-3), Braham Singh (PW-4), Yash Paul (PW-5), P.D. Jain (PW-6), Rakesh Kumar (PW-7), Dr. Usha Bansal (PW-8), Gurmail Singh (PW-9), Kewal Krishan (PW-10), Usha Rani, Usha Rani (PW-11) and Prem Chand (PW-12). 6. When examined under Section 313 Cr.P.C., Joginder accused-appellant denied the allegations and stated that he was falsely implicated in this case because there was a dispute Criminal Appeal No. 596-SB of 2000. 3 between him and family of the prosecutrix. Similar stances were adopted by Jeet Pal and Sanjay accused-appellants. Manohar (DW- 1) and Birpal (DW-2) were examined in defence. 7. Learned counsel for the accused-appellants have assailed the impugned judgment on the grounds (i) that the alleged occurrence took place on August 2nd, 1998 whereas First Information Report was recorded on August 4th, 1998, that is, after two days of the occurrence which shows that the things did not happen in the manner, they were projected by the prosecution; (ii) that per the ossification report (Exhibit PE) proved by Dr. P.,D. Jain (PW-6), prosecutrix was 16-17 years old meaning thereby she was above 16 years at the time of alleged commission of crime; (iii) that Joginder Singh who allegedly raped the prosecutrix was her relative. Both were intimate friends as is evident from the photograph (Exhibit D-5); (iv) that had it been a case of rape, question of entering into compromise (Exhibits D-1 and D-2) by the prosecutrix and her family members with the accused-appellants would not have arisen; (v) that since she knew the hut of Akshay, she did not object to going there without asking the appellants as to why she was being taken to his hut and not to her mother shows that she followed Joginder of her own; (vi) that circumstances show that it was not a case of rape rather was a case of consensual intercourse at the most; (vii) that Sanjay and Jeet Pal were falsely implicated by the prosecutrix because Jeet Pal was uncle of Joginder and Sanjay was his friend; (vii) that at the time of medical examination, Dr. Usha Bansal (PW-8) did not find any external mark of injury on any part of body of the prosecutrix which again shows that she was not raped. 8. On the other hand, learned State counsel has supported the judgment of trial Court and urged that prosecutrix in her statement has fully supported the prosecution case and her statement is sufficient to prove that she was raped by Joginder. Sanjay and Jeet Pal were instrumental in helping Joginder in the commission of crime and as such, the appeal should be dismissed. 9. There is no documentary evidence except the bald Criminal Appeal No. 596-SB of 2000. 4 statements of prosecutrix and her father that she was 13 years old at the time of the crime. She was radiologically examined by Dr. P.D. Jain (PW-6). He stated that as per report (Exhibit PE) and skiagraphs (Exhibits PE-1 to PE-4), the age of prosecutrix was between 16 to 17 years. The evidence of this witness cannot be brushed aside. Weightage has to be given to the ossification report in comparison to the oral evidence. As per the Modi Medical Jurisprudence, variation of two years can be taken on either side. In Dalip Singh alias Dalip Kumar vs. State of Bihar 2004(4) RCR (Criminal) 972, Hon'ble Supreme Court has held that the defence is entitled to rely on higher side of the age given by the Doctor. In view of ossification test, it is held that prosecutrix was not under 16 years of age on the day of alleged offence. 10. The next question arising for adjudication is: whether it was a case of consensual intercourse or rape ? 11. Indisputably, prosecutrix and the accused- appellants were residing in the huts (Jhugis) in the same locality. Joginder and Jeet Pal were relatives of the prosecutrix. They were on visiting terms. In photograph (Exhibit D-5), Joginder Singh and prosecutrix featured together. She knew the hut of Akshay. In case, she was taken on the pretext that her mother was ill, she could at least ask the appellants as to why she was being taken to the hut of Akshay and not to her mother. She did not utter a word rather quietly followed them to the hut of Akshay. It has been also stated by her that when her clothes were being removed by Joginder, she did not stop him. However, she added that he removed her clothes forcibly. According to her, she was raped on the floor of the room and not on the bed. If the rape was committed on the floor of the house then possibility cannot be ruled out that she would have received some external injuries on her person. Dr. Usha Bansal (PW-8) has categorically stated that there was no mark of injury on her breast, thighs or any other part of body. The matter does not rest here. Gajepal father of the prosecutrix (PW-3) deposed that on August 4th, 1998, Sanjay accused-appellant came to him and asked him as to Criminal Appeal No. 596-SB of 2000. 5 where the prosecutrix was. Thereafter, a search for prosecutrix was made by his another daughter and son. It shows that family members of the prosecutrix were not aware about her whereabouts since August 2nd, 1998 till August 4th, 1998. Had Sanjay been a conspirator in the crime, question of his informing father of the prosecutrix about her would not have arisen. Gajepal (PW-3) has also stated that his son Narinder also witnessed the prosecutrix and Joginder in the hut of Akshay. Again, it appears to be false. Had it been so, Narinder must have interfered and rescued his sister from the clutches of Joginder. He did not raise any hue and cry nor informed any of his family members what to talk of the Police. There is no explanation put forth by the prosecution as to why the report was lodged after two days of the occurrence. The only explanation given by Gaje Pal was that he was not at home. It is not true because he has stated in his statement that on August 2nd, 1998 Sanjay came to him and asked about the whereabouts of his daughter-prosecutrix and then he deputed his son and daughter to make search of her. This shows that he was very much at his home on August 2nd, 1998. This being so, the prosecution also failed to prove the delay of two days in lodging the report to the Police, which creates doubt on the veracity of the story of the prosecution. All the aforesaid circumstances taken cumulatively, leads to the conclusion that prosecutrix was consenting party if at all Joginder had sexual intercourse with her. 12. Thus, learned trial Judge fell in error when he held the accused-appellants guilty and convicted them. There was no sufficient or reliable evidence to bring the guilt home. 13. For the reasons aforesaid, the appeals are accepted. The impugned judgment of conviction and order of sentence passed by the learned trial Judge are set-aside and the accused-appellants are acquitted of the charges. The bail/surety bonds shall stand discharged. 7.12.2010 (Nawab Singh) SN Judge