STATE OF H P Vs. ROSHAN LAL

JUDGEMENT

(1.) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378(3) of the Code of criminal Procedure in reference to judgment dated 18.11.1996, passed by the Learned Sessions Judge, Kinnaur, H.P. in Criminal Trial No. 8-R/7 of 1996, under Sections 376 of the Indian Penal Code, acquitting the sole respondent.

(2.) The prosecution case, in nutshell, is that on 02.04.1995, Smt. Madi Devi has lodged report with the police wherein she had alleged that she is living in her village with her children and Kumari Reena, who is aged about 16 years, was under treatment for throat ailment. On 20.03.1995, her daughter alongwith Asha and Amar Dassi came to see Fag Mela at Rampur. On 23.03.1995 Amar Dassi told her that the victim has been taken away by accused Roshan Lal on 23.03.1995 for marriage, as the victim was hard of hearing. On the date of incident accused respondent followed the victim and told her that he wants to marry her for which victim gave him slap. However, accused respondent promised her that he will marry her and will not leave her and thereafter victim prosecutrix was taken by the accused. On the basis of complaint, a case under Sections 363, 366 of the Indian Penal Code was registered. The accused disappeared and the victim was recovered from the house of one Kamla Negi of Village Racholi and was handed over to her mother and her statement was also recorded. The prosecutrix was got medically examined from the Referral Hospital Rampur and the doctor has opined that the victim has been sexually assaulted. The clothes of the victim were also taken in possession which were sent for chemical examination. Victim prosecutrix was sent for Radiological test to ascertain the age and according to the Radiologist, the age of the prosecutrix was between 13 to 15 1/2 years at the time of incident. As per Panchayat certificate the age of the prosecutrix at the time of incident has been mentioned 28.08.1988. However, the accused was charged for offence punishable under Section 376, 366 of the Indian Penal Code. The prosecution in support of its case has examined 13 witnesses in all, whereas the accused has been examined under Section 313 of the Code of Criminal Procedure and denied the same.

(3.) PW-1 Dr. Sudha Prakash, Radiologist had examined the prosecutrix on 06.04.1995 and given the following observations: