State Of J&K vs Madhur Singh

Puneet Gupta, J

The appeal has been preferred by the State against the judgment dated 19.12.2013, passed by the court of learned 3rd Additional Sessions Judge, Jammu whereby the trial court acquitted the respondent (referred as accused in the judgment) of charge framed under Section 376 RPC. The respondent has been convicted for offence under Section 363 RPC and sentenced for rigorous imprisonment for a period of three years and a fine of Rs.2000/-. In default of payment of fine, the accused was to undergo simple imprisonment for a period of one month. The period of detention undergone by the respondent was set off against the sentence imposed by the court. The court directed the release of the respondent from custody as he had already completed the sentence during custody. It is submitted in the appeal that the judgment passed by the trial court is against law and facts of the case and the trial court has failed to appreciate the prosecution evidence. It appears that the appellant while filing the appeal has not thoroughly gone through the judgment/order passed by the trial court as the appeal does not speak of the conviction of the respondent by the trial court for the offence under Section 363 RPC and seeks conviction of the accused in offence under Section 363 RPC.

Heard learned Additional Advocate General for the appellant. The scanned record of the trial court is before the court.

The alleged missing of the prosecutrix led to filing of report by the father of the prosecutrix with Police Post, Canal Road, Jammu on 22.09.2010. It was reported that the prosecutrix left her house on 20.09.2010 at 5.30 PM for visiting her friend but did not return back in the evening. The prosecutrix could not be found despite search. PW-3, father of the prosecutrix, filed written complaint with the Magistrate resulting into registration of FIR No. 183/2010 with Police Station, Nowabad under Section 363 RPC. The prosecutrix along with the accused was recovered from the tenanted premises of accused from Meerut. On completion of the investigation, the challan was presented against the accused under Section 363/376 RPC and charges were also framed against the accused for the aforesaid offences. The accused denied the charges and claimed trial.

Learned Additional Advocate General appearing on behalf of the appellant has mainly referred to the statement of the prosecutrix and the medical evidence to support his contention that the trial court erred in acquitting the accused of offence under Section 376 RPC.

PW-1, prosecutrix in her statement, has deposed of her being going to the house of friend on 20.09.2010 at 5 PM when the accused met her on the way and informed her that her friend is waiting for her at Bus stand and the prosecutrix thereafter proceeded with the accused to Bus stand and after reaching Jewel area they boarded a matador and thereafter the accused forcibly took her to railway station, Jammu and after boarding the train both of them reached U.P. The prosecutrix further states that the accused used to beat her for 6/7 days after being threatened by the accused. She has then deposed of her being rescued by the father and police from the accused. The accused committed rape upon her without her consent is also stated by the prosecutrix. The accused was known to her from June, 2010. She accompanied the accused on his asking and who told her that her friend Kajal is waiting for her near a canal.

PW-6 Dr. Dinesh Khajuria is radiologist and has given his opinion regarding the age of the prosecutrix being more than 12 years but less than 14 years. As per the witness, the determination of the age was on the basis of appearance of ossification centers and their fusion. As per the doctor, the exact date of person cannot be determined radiologically. The certificate issued by the witness is marked as EXT-P13.

PW-7 Dr. Jyotsana Lamba has examined prosecutrix on 30.09.2010 and as per the witness she did not find any external or internal injury on the person of the victim and also opined that there was no evidence of recent sexual intercourse with the prosecutrix. The witness has also stated that prosecutrix had stated her age as 15 years at the time of her examination. It is also stated by the witness that as per HP report no spermatozoa dead or alive were seen in the vaginal smears. The certificate issued by the witness is marked as EXT-P9.

The statements of other witnesses are more or less pertain to seizure memos and the investigation done by the police agency.

The trial court while acquitting the accused of charge under Section 376 RPC has rightly come to the conclusion that the age of the prosecutrix, in the facts and circumstances of the case, cannot be conclusively said to be below 16. The birth certificate issued by the Headmaster, Government Girls High School, Bhagwati Nagar mentions the date of birth of the prosecutrix as 02.03.1997. However, neither the scribe of the certificate nor any original record was produced during the trial to prove the certificate and thus the trial court rightly did not rely upon the same being not admissible in law. PW-6 Dr. Dinesh Khajuria has given his opinion qua the age of the prosecutrix between 12 and 14 years on the basis of ossification test conducted of the prosecutrix. The trial court has taken the variation of two years of the age of the prosecutrix qua the opinion given by the radiologist and held that the prosecutrix could be of 16 years of age at the time of occurrence. The margin of two years taken by the trial court in determining the proximate age of the prosecutrix as 16 years cannot be faulted with by this court. There is no other documentary evidence otherwise on record to prove the age of the victim being below 16 years at the time of occurrence.

As far as the allegation of alleged rape against the respondent-accused is concerned, the statement of PW-7 Dr. Jyotsana Lamba is that no external or internal injury was found on the person of the prosecutrix and there was no evidence of recent sexual intercourse with the prosecutrix. The statement of doctor is not the conclusive proof of the victim having been subjected to rape is trite proposition of law and the statement of the prosecutrix is the core to the allegation of her being raped by the accused. If the statement of the prosecutrix inspires confidence in the court in that case the medical evidence can pale into insignificance. Of course eventually it is the overall evidence that comes on record which determines the guilt or innocence of the accused of the charge under Section 376 RPC. The perusal of the statement of the prosecutrix is itself not credible when seen in the light of other evidence recorded in the case. The prosecutrix stating in the court that she was forcibly made to board a matador from Jewel area and taken to railway station, Jammu and further to U.P. and then stating that she was rescued from the clutches of the accused only when she made a secret phone call to her father does not inspire confidence. The statement that she was forced to proceed to the house of accused appears to be a cooked-up story as she had occasion to raise a noise against the accused during the course of journey but never did so. There is no evidence on record either that the accused had acted in such a way during the course of journey or thereafter which made the prosecutrix to unwillingly submit to the wishes of the accused. Infact it has not come in the statement of the prosecutrix that initially also she was made to join the company of the accused forcibly. The statement of the prosecutrix is also to the effect that she was told by the accused that her friend Kajal is waiting for her near a canal. PW-2 Malati Devi mother of the prosecutrix has stated in the court that she was informed by Kajal that a boy came to the tuition class and took her along with him on the pretext that the friend of prosecutrix wants to meet her. PW-5 Vinay Kumar is the brother of the prosecutrix and has deposed that he was not informed by anyone that his sister was taken by the accused. Kajal who was important witness is not produced by the prosecution during the trial. It has come in the statement of the family members of the prosecutrix that the accused was well known to the prosecutrix before the alleged occurrence took place. The statement of the prosecutrix that the accused committed rape upon her is a vague one and appears to be a vain attempt to frame him on rape charge. The uninspiring statement of the prosecutrix and the medical evidence, which does not mention of any injury on the person of the prosecutrix or sexual intercourse, do not establish beyond shadow of doubt that the accused had committed rape upon the victim. The trial court has otherwise also taken into consideration the statement of the accused recorded in terms of Section 342 Cr.P.C and his own statement in defense. The court has also relied upon the photographs of the marriage of the accused with the prosecutrix to hold that the prosecutrix had entered into wedlock with the accused. The probability of the prosecutrix having married the accused of her own will and the fact that the age of the prosecutrix at the time of alleged occurrence is not held to be below 16 years of age, the charge leveled under Section 376 RPC on that account also against the accused does not survive.

The court finds no reason to interfere with the acquittal of the respondent-accused under Section 376 RPC.

The accused has been, as stated above, convicted of offence under Section 363 RPC and sentenced to imprisonment and fine. The court finds no infirmity in the finding recorded for conviction under Section 363 RPC and the sentence imposed upon the accused by the trial court.

The appeal stands dismissed being without any merit.