LAWS(P&H)-1991-5-85

VIJAY KUMAR Vs. UNION TERRITORY, CHANDIGARH

Decided On May 16, 1991
VIJAY KUMAR Appellant
V/S
UNION TERRITORY, CHANDIGARH Respondents

JUDGEMENT

(1.) VIJAY Kumar and Dori Lal, appellants were acquitted by the learned Additional Sessions Judge, Chandigarh on Ist April, 986, of the charge under Sections 366/376 of Indian Penal Code but convicted of the charge punishable under Section 363 of Indian Penal Code and vide order dated 3rd April, 1986, the learned trial Court sentenced them both to undergo 2 years rigorous imprisonment each. Feeling aggrieved from the above said order, they have come up in appeal.

(2.) THE brief resume of facts relevant for the disposal of this appeal is that Miss Suman along with her parents used to reside in Bapudham Colony, Chandigarh where Vijay Kumar, appellant, also resided. On the evening of 9th July, 1985 at about sunset time she went to the common latrines for easing, out. Vijay Kumar and Dori Lal, accused, met her and asked her to accompany them on the inducement of purchasing good clothes and ornaments. Vijay Kumar also promised to marry her. Feeling allured by this representation, she accompanied them to the hutment of Vijay Kumar where all of them stayed for the night. On the next morning, all of them went to Railway Station, Chandigarh. She was made to board the train along with Dori Lal, accused, on the representation of Vijay Kumar that he will join them later. They went to Bareilly. At Bareilly Railway Station, Dori Lal, accused, started misbehaving with prosecutrix on which she complained to A.S.I. Vijay Kumar of Railway Police and her statement was recorded. Dori Lal, accused, was also arrested. The father of the prosecutrix being out of station, her brother Mohan Rao and mother continued waiting for his arrival till 11-7-1985 when her father lodged the report Ex. PK with the Police and on its basis the formal FIR Ex. PK/D was recorded on 12-7-1985 at 8.45 p.m., at Police Station East, Chandigarh, for offences punishable under Sections 363 and 366 of Indian Penal Code. The police then brought the prosecutrix and Dori Lal, accused from Bareilly and got the prosecutrix medically examined by Dr. Harbir Bajwa, PW1, who observed no injury on her private parts. The vagina admitted two fingers with difficulty. On ossification tent, conducted by Dr. S.P. Gupta, PW9, the bone age of the prosecutrix was found between 16-1/2 years to 17 years. Vijay Kumar accused, was also got medically examined. During investigation, School admission form and affidavit of the father of the prosecutrix was produced which depicted her date of birth as 30-12-1971. After completion of investigation the accused were arraigned for trial on such like allegations. The trial Court framed charges against the accused under Sections 363, 366 and 376 of Indian Penal Code. In order to prove its above referred charges, the prosecution examined the prosecutrix; her brother Mohan Rao, PW7; her father, Bithal Rao, PW 11; Smt. Sundra, PW8, her mother; besides leading medical evidence and examining the investigators. The assertion of both the accused-appellants before the trial Court was that of simple denial and false implication. The accused, however, led no evidence in defence despite being called upon to do so by the trial Court.

(3.) THE acquittal of the accused for the offence under Sections 366/376 IPC has become final as the application under Section 378(3) of the Code of Criminal Procedure of the Union Territory Administration for leave to appeal against that order was declined by a Division Bench of this Court on 10.7.1988.