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| Court acquits accused in kidnapping, rape case of minor | | | Early Times Report
Jammu, May 4: Principal Sessions Judge B L Bhat acquitted Vipan Kumar who was facing trial for the last six years in kidnapping & rape of a minor girl. According to prosecution case accused is alleged to have kidnapped a minor for subjecting her to illicit intercourse, brought her to Jallandhar and committed rape with her repeatedly in May 2004. Allegedly prosecutrix was recovered from residence of accused at Narwal Bala on May 16, 2004. Prosecutrix denied allegations of being kidnapped by accused, being enticed away outside State and being subjected to rape. She was declared hostile to prosecution and cross-examined by Public Prosecutor. However, she maintained that she had gone to house of her aunt without informing her parents and stayed there. She admitted having made a statement before the police, but denied accusation of kidnapping and rape.
In acquittal Principal Sessions Judge B L Bhat after hearing Public Prosecutor Shabir Ahmed Choudhary and Adv G.S.Wazir appearing for accused observed that, it appears that complainant Joginder Lal died during the course of trial before he could enter the witness box. Consequently report lodged by complainant has not been proved at trial. Prosecution has not examined the IO to prove the entries in Daily Diary recording report lodged by complainant. It has also failed to prove FIR. Curiously enough neither the mother, nor the uncle of prosecutrix has described age of prosecutrix or come up with the allegation that she was a minor at time of alleged occurrence. Prosecution has examined the Headmistress of the school to prove that prosecutrix was below 16 years of age on the date of alleged occurrence, but in absence of substantive evidence of age of prosecutrix coming from the mouth of mother of deceased and in absence of proof of recording of her Date of Birth in school records accurately by a person acquainted with her birth particulars in the ordinary manner, the proposition emerging from school record can hardly be held to be reliable. Prosecution has not examined the Radiologist, but the record of Radiologist forming part of Challan records opinion of Radiologist, according to whom, the bone age of prosecutrix was between 16 and 17 years. It is well settled that the estimate of age based on Radiological examination of various bones and joints, is liable to be err to an extent of two years on either side. Viewed in that context the upper limit of estimate of age of prosecutrix touches the figure of 18 relevant for vesting discretion in the prosecutrix to act independently and be capable of according consent to join, go along and live with anybody. In absence of substantive proof of age of prosecutrix coming from her parents and with municipal record of birth of prosecutrix not brought on record by prosecution, the estimate of age of prosecutrix based on the record of Radiologist with the error probability added to same, prosecutrix is held to have attained the age of discretion relevant for purposes of offences alleged against the accused. With no evidence of recent intercourse found at the time of examination of prosecutrix and no substantive evidence of rape, the charge u'/s 376 RPC falls flat and cannot be sustained. Prosecutrix has discounted the theory of kidnapping and rape at the hands of accused. Her uncle has put up a version different from the prosecution story regarding recovery of prosecutrix. He has not supported Furd Bramdagi. Mother and uncle of prosecutrix have not come up with the version that the prosecutrix was minor living under the care and protection of her parents and that she was kidnapped from lawful guardianship of her parents and ravished by the accused. The Star witness of prosecution having declined to support the prosecution version and there being no substantive evidence regarding complicity of accused in kidnapping and rape, the case deserves dismissal at this very stage. This case is accordingly dismissed and the accused is acquitted of the charges framed against him. His bail bond and personal bond stands discharged. ---JNF
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