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2018 Supreme(P&H) 1003
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Pal Singh - Appellant
Vs.
State of Punjab - Respondent
CRA-S-571-SB-2012 (O&M)
Decided on : 03-02-2018
Advocate Appeared:
For the Appellant :Ms. R.P. Kaur, Advocate (Legal aid counsel)
For the Respondent: Mr. Karanbir Singh, AAG, Punjab.
The central legal point established in the judgment is the necessity of proving the age of the prosecutrix and the importance of cross-examining the medical examiner to establish the commission of the offences under Sections 366A and 376 IPC.
Headnote:
IPC - Conviction under Sections 366A, 376 - Summary of Acts and Sections: Indian Penal Code (IPC) - Sections 366A, 376 - The court discussed the legal provisions related to the age of the prosecutrix, consent, and the elements of the offences under Sections 366A and 376 IPC. The court emphasized the importance of proving the age of the prosecutrix and the necessity of cross-examining the medical examiner to establish the commission of the offence. The court also considered the prosecutrix's statement, medical examination report, and the absence of documentary evidence to prove the age of the prosecutrix.
Fact of the Case:
The appellant was convicted for offences under Sections 366A, 376 of the IPC based on the abduction and sexual assault of a minor girl. The appellant challenged the findings of the trial court regarding the age of the prosecutrix and the evidence presented by the prosecution.
Finding of the Court:
The court found that the prosecution failed to prove the age of the prosecutrix and establish the commission of the offences under Sections 366A and 376 IPC against the appellant. The court highlighted the discrepancies in the evidence and the absence of conclusive proof regarding the prosecutrix's age and consent.
Issues: The key issues revolved around the age of the prosecutrix, consent, and the elements of the offences under Sections 366A and 376 IPC. The court addressed the admissibility of evidence, the necessity of proving the prosecutrix's age, and the significance of cross-examining the medical examiner.
Ratio Decidendi: The court's decision was based on the lack of conclusive evidence to prove the age of the prosecutrix and establish the commission of the offences under Sections 366A and 376 IPC. The court emphasized the importance of cross-examining the medical examiner and the absence of documentary evidence to support the prosecution's claims.
Final Decision: The appeal was allowed, and the conviction and sentence under Sections 366A and 376 IPC were set aside due to the prosecution's failure to prove the age of the prosecutrix and establish the commission of the offences against the appellant.
ARVIND SINGH SANGWAN, J.
1. Challenge in this appeal is to the judgment dated 30.09.2011, vide which the appellant was convicted for the offences punishable under Sections 366A, 376 of the Indian Penal Code (‘IPC’ for short) and vide order of sentence dated 30.09.2011, he was awarded R.I. for 10 years and to pay a fine of Rs.10,000/- under Section 376 IPC. In default of payment of fine, the appellant was further ordered to undergo imprisonment for six months and R.I. for 05 years along with a fine of Rs.5,000/- under Section 366A IPC and in default of payment of fine, he was to further undergo imprisonment for three months.
2. Brief facts of the case are that an FIR No.53 dated 19.05.2009 under Sections 363A, 366, 376, 120-B IPC, Police Station Sadar Kotkapura was registered on the statement of Harbans Kaur, mother of the prosecutrix. As per the version given by her, on 18.05.2009 at about 10.00 AM, she along with her husband Sukhdev Singh, two sons and daughter Ramandeep Kaur were present in the house. Her daughter Ramandeep Kaur was aged about 14 years and she went to a nearby shop and did not return. When they were searching for her, one Hukam Singh son of Mangat Ram and Kirpal Singh son of Mehar Singh met her near Ram Dass Mandir and told that her daughter Ramandeep Kaur and Pal Singh (accused-appellant) were going towards bus stand. After reaching the bus stand, she could not find her daughter and Pal Singh. It was further stated that Pal Singh-appellant had kidnapped her daughter Ramandeep Kaur, a minor. It was further stated that Pal Singh is aged about 18/19 years. On the basis of her statement Ex.PA made to the police and endorsement Ex.PA/2 made by ASI Amrik Singh, the information was sent to the police station and FIR Ex.PA/3 was registered by ASI Ram Singh. He made his endorsement on ruqa Ex.PA/4 and also recorded the statements of Hukam Singh and Kirpa Singh. On 11.07.2009, SI Roop Chand recovered Ramandeep Kaur, while she was standing with the appellant Pal Singh near Jubilee Cinema Chowk, Faridkot and recorded her statement and thereafter, the offence under Section 376 IPC was added and accused Pal Singh was arrested. After medico-legal examination of Ramandeep Kaur as well as of the accused, other formalities were completed and the accused was presented before the Illaqa Magistrate. Thereafter, the challan was presented and a copy thereof was supplied to the accused persons.
3. The trial Court vide order dated 08.10.2009 committed the case to the Court of Sessions and therefore, vide order dated 09.11.2009, charges were framed against accused persons Pal Singh, Rajnit Singh and Resham Singh under Sections 366, 376 IPC read with Section 120-B IPC.
4. A report from the Juvenile Justice Board dated 12.08.2010 was also received by the trial Court, in which it was held that accused Pal Singh is not juvenile and therefore, all the three accused persons namely Pal Singh, Ranjit Singh and Resham Singh faced the trial under Section 366, 376 read with Section 120-B IPC.
5. The prosecution in its evidence examined PW1 Harbans Kaurcomplainant, mother of the prosecutrix and she deposed on the lines of the statement made to the police Ex.PA forming basis of registration of the FIR Ex.PA/3. She also proved an affidavit Ex.PB submitted by her to the police regarding the date of birth of her daughter Ramandeep Kaur. PW2 Dr. Ram Gopal tendered into evidence affidavit Ex.PW5/A and proved copy of MLR of accused Pal Singh vide Ex.PW5/B. This witness stated that he has conducted the medical examination of accused Pal Singh on the basis of an application moved by the police Ex.PW5/C. PW3 Ramandeep Kaur, the prosecutrix stated that she was 16/17 years of age when the occurrence took place. She knew Pal Singh accused and he was having his house in her neighbourhood. It was further stated that Pal Singh used to ask her to marry him and he took her to Faridkot where they remained together for about two months (wrongly recorded as tw
