STATE OF H.P. Vs. HEM RAJ

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 17th May, 1996 delivered by the learned Sessions Judge, Solan in Session Trial No. 10-NL/7 of 1995, whereby the accused has been acquitted of having committed an offence of attempting to rape the prosecutrix punishable under Section 376 read with Section 511 of the Indian Penal Code.

(2.) It is not disputed that the prosecutrix is only about eight years old. On 13th January, 1995 at 12.30 p.m Smt. Rattani Devi (PW-4), mother of the prosecutrix lodged a complaint with Police Station, Nalagarh to the effect that at about 11.30 a.m., she and her daughter (prosecutrix) after taking their meals were sitting on the roof of the house enjoying the sunshine. After some time, the prosecutrix went down to the ground floor. Their neighbour Hem Raj accused, called the prosecutrix and told her that he would give her some money to celebrate "Lohri". Then the prosecutrix went to the room of Hem Raj. The mother of the prosecutrix came down and saw that the prosecutrix had been made to stand next to the wall of the kitchen of Hem Raj accused and her 'Pajami' had been pulled down. Accused Hem Raj had also taken off his Pajama and underwear and he had raised the frock of the prosecutrix and had placed his male organ next to the private part of the prosecutrix. The complainant immediately raised an alarm and called the owner of the house Mr. Yash Pal Joshi, who was standing below the house. He came, and was informed about the entire incident and thereafter the matter was reported to the Police.

(3.) The prosecutrix, who is only eight years old, was examined in Court. She is a child witness. The Court came to the conclusion that this child did not understand the sanctity of oath. Therefore her statement was recorded without administering oath to her. Her entire statement reads as follows: