STATE OF HIMACHAL PRADESH Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) On special leave being granted, the State of Himachal Pradesh has preferred this appeal against the judgment and order dated 16/11/1983 acquitting the respondent of an offence under Section 376 Indian Penal Code earlier recorded by the learned Sessions Judge.

(2.) Briefly stated the prosecution case is that on 2/08/1982, the prosecutrix, Raksha Devi Public Witness 4 along with her father Nikkoo Ram Public Witness 5 and an older sister by name Samti were in their fields. It started to rain all of a sudden and the prosecutrix, her father and her sister, ran towards their house. The prosecutrix got separated from her father and elder sister and was following them when the respondent Raghubir Singh then aged about 16 years, came to her and caught hold of her hand and took her under a mango tree. The prosecutrix, who was 7/8 years old at that time was wearing a frock and having a shawl with her. The respondent spread the shawl on the ground and making the prosecutrix lie on that shawl committed rape on her. Since, the prosecutrix had not reached her home, Nikkoo Ram her father after waiting for about half an hour returned towards the field and saw the respondent lying on top of the prosecutrix, Raksha Devi, under the mango tree. He raised alarm and the respondent ran away carrying with him his underwear. The prosecutrix was crying and was bleeding per vagina. The occurrence took place at about 2.30 p. m. and the First Information Report Ex. PE was lodged at the Police Station at 5.50 p. m. The prosecutrix was got examined by the doctor, who found her hymen ruptured and slight bleeding coming out of the vaginal edges. Blood clot was also present and the external genitals of the prosecutrix were found to be tender and red. The vagina admitted one finger with difficulty, which got smeared with blood. The doctor who had examined the prosecutrix, namely, Dr Urmil Gupta, Medical Officer, Rural Hospital, Nalagarh at about 7 p. m. on the same day, appearing as Public Witness 1 at the trial had also testified that when the prosecutrix was brought to her by her father, he had also brought with him a shawl, which was found to be having some mud and blood stains. According to the opinion of Dr Urmil Gupta Public Witness I, the prosecutrix had been subjected to sexual intercourse and the probable duration of the injuries on her private parts,including the vagina, was about 6 to 12 hours. During the cross-examination, a suggestion was put to the doctor that the injuries found on the prosecutrix could have been caused by a fall on some bushes or on the stem of a 'beree' tree but the doctor had categorically denied the suggestion. It was also suggested to her that the vaginal injury could also be caused by inserting a finger in the vagina. The X-ray, the skiagrams and the examination of her teeth by Dr Subhash Chandra Aggarwal Public Witness 2 established the age of the prosecutrix to be between 6 to 8 years. The respondent was also examined by Doctor C. L. Sharma Public Witness 3, Medical Officer at the Rural Hospital, Nalagarh. He had found the respondent to be potent and capable of sexual intercourse. He denied the suggestion that injuries would necessarily be caused to the penis in case of sexual intercourse by a grown up male with a virgin when during the act her hymen gets torn.

(3.) The father of the prosecutrix Nikkoo Ram Public Witness 5, the prosecutrix Raksha Devi Public Witness 4 and Taru Public Witness 7, who had rushed to the scene of occurrence on hearing the alarm and had also seen the respondent running away therefrom carrying with him his underwear supported the prosecution case in its totality.