Harjinder Singh @ Ghullu vs State of Punjab

K.S. Kumaran, J.

F.I.R. No. 97 dated 18.7.1999 has been registered at Police Station Mamdot, under Section 376 I.P.C. on the statement of Gurjit Kaur. The allegation against the petitioner is that on 15.7.1999, the petitioner committed rape on her. The petitioner had approached the Sessions Court, Ferozepur, for bail under Section 438 Cr.P.C. which was declined by the Additional Sessions Judge, Ferozepur, That is why the petitioner has approached this Court under Section 438 Cr.P.C. for the same relief.

I have heard the learned counsel for both the sides and perused the record.

The learned counsel for the petitioner contends that annexure P6 medico legal report regarding Gurjeet Kaur prosecutrix shows that the hymen was torn, that the tear seemed to be an old one, that there were no external marks of injury, that the vagina admitted two fingers and therefore, it is clear that no offence under Section 376 I.P.C. is made out against the petitioner. The further contention of the learned counsel for the petitioner is that the prosecutrix is not 14 years as mentioned in the F.I.R. but is more than 16 years old. The report of the ossification test conducted on the prosecutrix Gurjeet Kaur has been produced by the State, which shows that the approximate age of the prsecutrix was 13 to 15 years as on 26.8.1999. The learned counsel for the petitioner further contends that by giving a margin of two years, the age of the prosecutrix can be taken as 17 years, and in the circumstances pointed out where there is no evidence of any external violence, the petitioner is entitled to be released on bail. The learned counsel for the petitioner also contends that the petitioner is also a minor, though he cannot strictly be called juvenile. The learned counsel for the petitioner points out from annexure P1, the certificate issued by the school, that the date of birth of the petitioner is 3.7.1983, and that this shows that he was 16 years and 12 days old on the day of the alleged occurrence.

The learned counsel for the State contends that from the result of the Chemical Analyst, it is seen that human semen was found and, therefore, the petitioner is not entitled to be released on bail. He also contends that the prosecutrix had not attained 16 years of age.

The learned counsel for the petitioner relied upon the decision of the Himachal Pradesh High Court in Paramjit Singh v. State of H.P., 1987(1) RCR 247 in support of her contention that the margin of error in ossification test varies from 1 to 2 years, and that the benefit of the error has to go to the accused. The learned counsel for the petitioner also relied upon a decision of this Court in Jage Ram v. The State of Haryana, 1987(1) RCR 346 , where a margin of three years was allowed and the benefit was given to the accused.

But the learned counsel for the complainant relying upon the decision in Bhupender Parkash v. State, 1986(1) RCR 244 contended that simply because no injury was found on the private part it did not mean that the prosecutrix was a consenting party. But this decision will not apply to the facts of this case. In the decision relied upon by the learned counsel for the complainant, the prosecutrix was kept by the accused for a long time of four months and she was repeatedly subjected to rape. Therefore, it was held that there could be hardly any possibility of fresh injury to her private parts being detected after a lapse of such a long time, and, therefore, nothing turns on this circumstance. Whereas it is not so in the present case. Therefore, this decision relied upon by the learned counsel for the complainant will have no application to the facts of this case. The learned counsel for the complainant relied upon a decision of this Court in Jawahar Lal v. State of Punjab, 1992(1) RCR 664. That was a case where the age of the prosecutrix was shown as below 16 years, according to the entry in the birth and deaths registers. This Court held that the birth entry is the best evidence to ascertain the actual age of the prosecutrix since there can be variation from 1 to 3 years on either side to the age given as per the ossification test. But in the present case, neither the State nor the complainant has produced any document to show the age of the prosecutrix as per the birth register entry. Therefore, this decision will not help the complainant.

Therefore, taking into consideration the arguments put forward by both sides and the fact that the petitioner had just completed 16 years by a few days on the date of the alleged occurrence, but without meaning to express any opinion on the merits of the main case, I am of the view that the petitioner should be granted bail in anticipation of arrest.

In the result, the petition is allowed.

In the event of arrest of the petitioner on the allegations in the FIR in question, the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of the arresting officer.

If association of the petitioner is necessary for the purpose of investigation, the concerned investigating officer shall issue notice giving sufficient time to the petitioner to join investigation and on such notice the petitioner shall join investigation.

However, the petitioner shall abide by the provisions of Section 438(2) Cr.P.C.