RAJPAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) Present appeal against judgment of conviction dated 08.01.2004 and order of sentence dated 09.01.2004, passed by Additional Sessions Judge, Fast Track Court, Gurgaon.

(2.) Relevant facts of the case that on 15.08.2002, complainant Murti Devi reported to the police that her daughter-prosecutrix (name not disclosed) had gone to school on 14.08.2002 and had not come back. They had searched at their own level. Complainant further reported that Raj Pal (present appellant-convict) was earlier known to her family and had kidnapped prosecutrix by enticing her to some unknown place. Later on, prosecutrix was recovered and handed over to complainant after medical examination. Accused was also medico legally examined. Statement of prosecutrix was recorded under Section 164 Cr.P.C. After completion of necessary investigation, challan was presented in the Court. Learned trial Judge after completing other various proceedings of the trial including framing of charge against the accused, recording of statement of prosecution, examination of accused under Section 313 Cr.P.C. and after considering the prosecution evidence, held appellant guilty and convicted and sentenced him for the offence under Sections 363, 366 and 376 IPC.

(3.) Learned counsel for the appellant mainly urged that the prosecution is not believable because prosecution has placed reliance upon statement of prosecutrix under Section 164 Cr.P.C. but that statement was recorded when she was in police custody and that was under the influence of the police and cannot be used to convict the accused. More so, as per statement of PW10 Dr. Renu Sharma, age of prosecutrix was 15 years. In such a cases, there is always a margin of 2 years and keeping in view margin of 2 years, prosecutrix was of the age of 17 years. As per school certificate (Ex.PE/2) her date of birth was 05.04.1989 On this point, reliance upon judgment from Co-ordinate Benches of this Court in cases Naresh Kumar @ Nesha Vs. The State of Haryana, 2013 3 RCR(Cri) 315; Nibhu Vs. State of Haryana, 2015 1 RCR(Cri) 303; Arshad Vs. State of Haryana, 2011 1 RCR(Cri) 111 and Sagar Kumar Vs. State of Haryana, 2011 1 RCR(Cri) 620.