Rape--DNA profile matched--Acquittal--Prosecutrix (minor girl) had gone with accused with her own consent; they performed marriage and thereafter sexual intercourse happened with her consent--Accused not aware that prosecutrix was minor at that time--Therefore matching of DNA profile cannot be ground for conviction

JUDGMENT

Mr. Raj Shekhar Attri, J. (Oral):- Feeling aggrieved against the judgment of conviction dated 15.10.2018 and order of sentence dated 17.10.2018, passed by the learned Additional Sessions Judge, Kaithal, vide which the appellant has been convicted under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment for a period of 07 years and to pay a fine of Rs.11,000/- and in default of payment of fine to further undergo simple imprisonment for a period of 15 days under Section 4 of the Protection of children from Sexual Offences Act, 2012, he has preferred the instant appeal.

2. This case has chequered history. Infact, the appellant-accused had solemnized marriage with the prosecutrix. She has been residing in the house of appellant as his wife till today and they have been blessed with a son. Although, the prosecutrix has supported the version of her marriage and discarded her version during the trial. Yet the appellant has been convicted solely on the basis of medical evidence especially the report of forensic science laboratory with regard to DNA profile.

3. The prosecutrix left her house in the intervening night of 7/8th November, 2017 and eloped with the appellant, without informing her parents. Therefore, her father Nirmal Singh lodged the report with regard to disappearance of his daughter from the house and he suspected that she was kidnapped by the appellant. On his statement, formal FIR was registered.

4. The prosecutrix was recovered on 20.11.2017. she suffered statement under Section 164 Cr.P.C. wherein she has categorically stated that she left her house with her free will on the night of 7/8.11.2017 and she had solemnized married with the appellant on 11.11.2017 and thereafter everything has been done with her consent.

5. However, she was found to be minor, therefore, she was medico legally examined. The appellant was also medico legally examined.

6. After completion of investigation, the report under Section 173 Cr.P.C. was presented before the court below.

7. The prosecution, in order to prove its case, examined PW1 Nirmal Singh, PW2 Smt. Kanwaljeet Kaur, PW3 prosecutrix, PW4 Constable Virender, PW5 Harpreet Kaur, PW6 Ishwar Dutt, PW7 ASI Laxman Singh, PW8 Head Constable Shishpal, PW9 Constable Nitish Kumar, PW10 ASI Ramesh Chand , PW11 Constable Dharam Pal, PW12 Sub Inspector Darshana Devi, PW13 Dharampal, PW14 Pooja Jangra, PW15 Dr. Sonali Dhillon and PW16 Dr. Deneshwar.

8. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. in order to afford him an opportunity to explain the incriminating evidence appeared against him. However, he pleaded his false implication. He did not lead any defence evidence.

9. On appreciation of evidence, the appellant was convicted and sentenced, as stated above.

10. During the trial, the prosecution examined informant Nirmal Singh (PW1), who is the father of the prosecutrix. He has stated that his daughter had left the house without disclosing any facts that she was going to Gurudwara at Amritsar. He denied that her daughter was kidnapped by the appellant.

11. PW2 Smt. Kanwaljeet Kaur, who is the mother of the prosecutrix, has also stated that her daughter (prosecutrix) left the house to pay obesiance in a Gurudwara at Amritsar. She also completely exonerated the prosecution version. The prosecutrix stepped into the witness box as PW3 and has categorically stated that she has performed marriage with the appellant and was staying with him. This court would like to reproduce the examination-in-chief of the prosecutrix hereunder:-

“Stated that on 08.11.2017 I left my house and went to Pehowa with accused Nishan Singh. I had performed marriage with him with my own wishes. I remained with accused Nishan Singhat Pehowa as his wife. During this period we made physical relations. Accused had made physical relations with me with my consent. He did not kidnap me