SURESH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is an appeal filed against judgment dated 20.7.1996 passed by Additional Sessions Judge, Sonepat convicting the appellant Suresh under Section 376 of India Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to suffer further rigorous imprisonment for a period of six months.

(2.) KUMARI Sheetal, aged about 12 years, the prosecutrix, daughter of Chaman Lal (PW10), a student of 6th standard had gone to Case herself near her Colony on 31.1.1995 at about 6.00 A.M. The appellant who was standing near a Kotha saw her coming and caught hold of her. The appellant lifted her inside the Kotha where after breaking the string of her Salwar and removing the same sexually assaulted her. The appellant had gagged her mouth by a piece of cloth. The cries of the prosecutrix, however, attracted her Aunt Smt. Roshni and one Smt. Premo (PW.5) to the scene of occurrence. The appellant took to his heels on seeing the aforesaid ladies approaching there. It is alleged that while running away from the place of occurrence the appellant threatened the prosecutrix that in case she divulged about this incident she would be killed. Smt. Roshni took her to the house. The father of the prosecutrix was away from his house and her mother was ill. The father returned home on 3.2.1995 and when he learnt about this incident he went to report the matter to the police and took the prosecutrix with him. The statement of the prosecutrix which is Exhibit PL, recorded by ASI Ram Avtar (PW.8) at Bahalgarh Chowk on the basis of which FIR Exhibit PL/1 was recorded against the appellant under Sections 376/506 of Indian Penal Code at Police Station Rai, the same day at 4.20 P.M. The prosecutrix was sent for medico-legal examination to General Hospital, Sonepat where Dr. R.R. Mittal, Medical Officer (PW.9) examined her the same day at 5.00 P.M. He found the general condition of the prosecutrix as nothing abnormal. The breast had partly developed. The pubic and auxilliary hairs were absent and there was no mark of injury on her body. On examination of vulva, no injury was found therein. There was no clotted blood present and there was no bleeding. The inspection was done after separation of labias (majora and minora) and no injury was detected. The hymen was found intact and did not admit a tip of finger. Per vaginal examination was not done. Two vaginal swabs were prepared form labias for detection of any kind of spermatozoa. The medico-legal report Exhibit PR together with the parcels having four seals containing the swabs and an envelope having six seals and sample seal were handed over to police constable who had escorted the prosecutrix to the hospital for medical examination. Appellant Suresh was apprehended by the Police and taken for medico-legal examination on 5.2.1995 at 8.00 P.M. before Dr. R.N. Tehlan (PW.3). According to the medico-legal report Exhibit PD prepared by Dr. Tehlan, there was nothing to suggest that the accused was incapable of performing sexual intercourse. However, he did not find any fresh mark of injury on the body and secondary sexual characters were well developed, like hairs on pubic area, chest and axilla. The male organs were well developed. The medico-legal report was handed over together with the underwear to the Police Officer accompanying the appellant. After completion of the investigations, the Investigating Officer submitted challan in the Court of the Committing Magistrate Shri A.S. Narang, Judicial Magistrate 1st Class, Sonepat who committed the case to the Court of Sessions vide his order dated 3.4.1995. The learned Additional Sessions Judge to whom the session trial was entrusted for trial, charge-sheeted the accused-appellant under Section 376 of Indian Penal Code. The appellant was put on trial after his plea of not guilty to the charge was recorded.

(3.) AFTER recording the prosecution evidence the accused-appellant Suresh was examined under Section 313 of the Code of Criminal Procedure wherein he denied the prosecution evidence led against him and stated that he was innocent and was falsely implicated at the instance of Smt. Premo who bore enmity towards him. Though he stated that he will lead evidence in defence but he did not lead any evidence. The learned Additional Sessions Judge held that prosecutrix Kumari Sheetal had been subjected to rape by accused Suresh and since she was a minor aged below 16 years, her consent notwithstanding the offence of rape was duly established. Consequently, the accused was convicted under Section 376 of Indian Penal Code and sentenced to suffer rigorous imprisonment and to pay fine as indicated above. Feeling aggrieved against his conviction and sentence this appeal has been filed.