MAHENDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal arises out of the following facts :- Mahender accused was residing in the neighbourhood of Lachhman and his wife Jamna Devi (PW-4) in Village Kotli, in the year 1999. The couple left for Lucknow for earning their livelihood, leaving behind their daughter Chameli, the prosecutrix, aged about 15 years and two other minor daughters and sons at home. About 2-3 days after her parents left, Mahender accused came to Chameli's house and after over-powering her, raped her. He also threatened that in case she conveyed this information to any body, she would be done to death. It is the prosecution story that the accused thereafter regularly visited Chameli's house and raped her frequently and on each occasion he came armed with a Barchha to intimidate her. It is also the prosecution story that Chameli became pregnant, on which she conveyed this information to the accused, who threatened kill her entire family if she disclosed this matter to any body else. When Chameli's parents returned from Lucknow after an interval of about six/seven months, she narrated, the entire episode to them and when she along with her parents went to the house of accused, they were abused by the accused and his family members on which she along with her parents rushed to the police station and lodged a complaint (Exh. PE) on 14.9.1999. An FIR (Exh. PE/2) was accordingly registered against the accused. He was arrested and medically examined and found fit to perform sexual inter-course. On the completion of the investigation, the accused was charged for an offence punishable under Section 376 of the Indian Penal Code and as he pleaded not guilty, was brought to trial.

(2.) THE prosecution in support of its case examined, in particular, PW-1 Dr. (Mrs.) Santosh Bishnoi, who had medico-legally examined Chameli on 14.9.1999 and had found that she was carrying a fetus 28 to 30 weeks old and though her hymen was absent, there was no mark of any injury on her person; PW-2, Dr. S.L. Aggarwal, who had examined the accused and found that there was nothing to suggest that he was unfit to perform sexual inter-course; PW-3 Sona Devi, Chameli's younger sister, who stated that about 20 months earlier, her parents had gone to Lucknow along with her elder brother, leaving her as well as her younger brothers, and Chameli in village Kotli and that Mahender accused often visited them armed with a Barchha and subjected Chameli to sexual inter- course; PW-4 Jamna Devi, Chameli's mother, who corroborated the aforesaid version; and PW-5, ASI Chand Ram, the Investigating Officer.

(3.) THE trial, Court in its judgment dated 10.4.2002, held that from the evidence on record, it was clear that Chameli had been more than 16 years of age at the time of the occurrence in the light of the fact that the doctor had opined that she was 17-1/2 to 18-1/2 years, on the day of the medical examination vide reports (Exhs. DD and DE). The Court also held that the delay in the lodging of the FIR stood explained in the light of the fact that there was no senior member of the family available in the village and that Chameli had been restrained by the accused from making a report by threatening her and her family and it was on this account that the FIR had been lodged belatedly and having held as above, convicted the accused under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months.