VIPIN KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Vipin Kumar appellant has come up in appeal against the order of the learned Additional Sessions Judge, Faridabad dated 3-12-1983 convicting and sentencing him to five years R.I. and fine of Rs. 100/- in default R.I. for one month under Section 376 I.P.C. Rajinder Kumar coaccused of the appellant was given the benefit of doubt and acquitted of the charge.

(2.) Sham Sunder Sharma, PW 7, an employee of the railways department, father of the prosecutrix Dipti Sharma, was posted as Assistant Station Master, PaIwal in the month of May, 1982. The house of Shri Man Mohan father of the appellant was close to the house of Shri Sham Sunder Sharma. They were on visiting terms. The appellant used to cast an evil eye and tease her when she went to school Sham Sunder Sharma left that house and started living in the railway quarters and also sent the prosecutrix to Hapur for her further education. After appearing in the 11th class at Hapur she came back to PaIwal on 22 5.1982, Dipti went to see T.V. in the house of neighbour namely S.C. Arora PW 8. Two other children of Sham Sunder Sharma accompanied Dipti Sharma. During the interval Dipti Sharma and other two children of Sham Sunder Sharma went back to the house. After taking their meals the other two children again went back to see the T.V. but Dipti Sharma did not go there. After some time Dipti Sharma also left the house and did not come back. Since Dipti Sharma could not be found, Sham Sunder Sharma lodged a report Exhibit PK with the police. On 28.5.1982 Dipti Sharma came back to the house at about 10.15 P.M. Information was sent to the police. Dipti Sharma had told her father that she was taken away by the appellant. On the basis of Exhibit PK. formal first information report Exhibit PK/1 was registered at Police Station, PaIwal City on 24.5.1982 at 2.30 P.M. It is alleged that the appellant took Dipti Sharma to various places, namely Gwalior, Jhansi, Bilaspur and Delhi, and also committed rape upon her at Delhi in a hotel Dipti Sharma was medically examined by Dr. Amita Gupta PW 1 on 29.5.1982 at 1.15 P.M. Following is the report of her medical examination: 1. Abrasion 1/211 x 1/2 over the right side of the face 1 below the lower eye lid. (2) Lacerated wound x 1/811 on the left lower lip in its inner surface. (3) Complained of pain in both hands. There was no external mark of injury all over the body especially chest, abdomen, thighs and back. Examination of external Genitalia: Pubic hair were present and matted. There was no external mark of injury on the vulva. The vagina admitted one finger loosely. The hymen showed old healed tears and moist. There was no bleeding per vagina." The appellant was arrested on 30.5.1982 and he was medically examined by Dr. L.R. Sardana PW 2 who found him fit to perform sexual intercourse. After investigation, the appellant was charge- sheeted under section 363, 366 and 376 I.P.C. and tried for these offences.

(3.) The trial Judge came to a finding that prosecutrix Dipti Sharma was a consenting party and she left the house of her guardian (her father) of her own accord and wrote letter Exhibit DE to the appellant. Therefore, the learned trial Judge acquitted the appellant of the charge under sections 363 and 366 I.P.C. However, the learned trial Judge came to a finding that on the alleged date when she was subjected to sexual intercourse by the appellant, she was less than 16 years of age. Therefore, the appellant was found guilty under section 376 I.P.C. To come to a finding regarding age of the prosecutrix, the learned trial Judge mainly relied upon birth entry Exhibit PE allegedly relating to the prosecutrix.