ANUP SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal by Anup Singh from jail is directed against the judgment and order dated 15.11.1999 passed by Sessions Judge, Mandi in Sessions Trial No. 6/99 whereby the appellant has been convicted under Section 376 of the Indian Penal Code for committing sexual intercourse with Smt. Beasa Devi his first cousin sister who is a mentally retarded woman. The learned Sessions Judge sentenced Anup Singh to suffer rigorous imprisonment for seven years and pay fine of Rs. 5,000/ - and in default thereof to suffer further rigorous imprisonment for two years. In case the fine is realized from the appellant, the same was ordered to be paid to the victim through her guardian.

(2.) Smt. Beasa Devi mentally retarded woman is aged about 40 -45 years. She was married but her marriage did not last long and she was sent back to her parental home by her husband after about six months of the marriage PW. Smt Beasa Devi lives alone in the Varandha turned into a room in the old house of the family in village Riharu, Tehsil Jogindemagar, District Mandi but she takes her food in the house of her brother Sher Singh. Smt. Krodhu Devi is the mother of Smt. Beasa Devi and five sons. All of them live separately in the same village and their houses are adjacent to each other. Krodhu Devi lives with her elder son Shri Dan Singh. The appellant Anup Singh is the first cousin of Smt. Beasa Devi and son of younger brother of the husband of Smt. Krodhu Devi. He also lives in his house which is nearby to the house of brothers of Smt. Beasa Devi.

(3.) The prosecution case in brief is that on 16.9.1998 at about 8.30 P.M. when Smt. Beasa Devi came to her room after taking meals in the house of her brother Sher Singh, her mother Smt. Krodhu Devi came to her room to see if her daughter had turned back and went to sleep. On entering the room of Smt. Beasa Devi, her mother saw the appellant trying on the person of Beasa Devi and found him committing sexual intercourse with her daughter. Smt. Krodhu Devi saw it in the torch light as there was no electricity light in that room. On seeing Smt. Krodhu Devi, the appellant ran away leaving behind his pyjama Ext. P -1, Kurta Ext. P -2, Banyan Ext.P -3 and Underwear Ext. P -4 respectively. The Police was immediately informed on telephone about the incident. It was in the next morning that Sub Inspector Rachhpal Singh who was Incharge of Police Post, Ladbharol came to the village and recorded statement of Krodhu Devi marked (Ext. PW -Z/A) and he sent the recorded statement to the police station for recording formal first information Report. ASI Shri Bishan Dass, recorded FIR Ext. PW -13/A in Police Station Jai Nagar (District Mandi). Appellant absconded from his house and he was subsequently arrested on 20.9.1998 in some other village. Sub Inspector Rachhpal Singh prepared spot map Ext. PW -13/6 and got PW.Beasa Devi medically examined from Dr. M.K. Rana who at the relevant time was posted as Medical Officer of Civil Hospital, Jogindemagar. The Investigating officer also recorded the statements of the witnesses and recovered Pyjama, Shirt, banyan and underwear left behind by the appellant in the room of Smt. Beasa Devi. The clothes of Beasa Devi were also taken into possession. All these clothes were sent to the Chemical Examiner for test but nothing incriminating was discovered by the Chemical Examiner. The appellant was arrested by S.I. Rachhpal Singh on 20.9.1998 in some other village and he was also got medically examined on 23rd September, 1998 from Doctor R.K. Sood, who at the relevant time was posted in Medical Hospital (Health Centre) Ladbharol According to the opinion of Doctor Sood, the appellant was found capable of performing sexual intercourse. After completion of the investigation, charge sheet was laid against the appellant for the commission of the alleged offence. The appellant denied the allegations appearing against him and claimed to be tried. The learned Sessions Judge on Police report found a prima -facie case against the appellant and charge sheeted him under Section 3761.P.C.