KAMAL KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) This jail appeal has been preferred by the appellant/accused (here -after referred to as the accused) against the judgment dated 5.5.1999 passed by the learned Sessions Judge, Chamba whereby the accused has been convicted under Sections 363 and 366 of the Indian Penal Code and has been sentenced to imprisonment for a period of three years and to pay fine in the sum of Rs. 1000/ - under Section 363 of the Indian Penal Code, and to imprisonment for a period of three yeas and fine of Rs.1000/ - under Section 366 of the Indian Penal Code and in default of payment of fine, he has been directed to undergo further imprisonment for a period of six months on each count.

(2.) Case of the prosecution, in brief, is that Vidya Devi (PW -4), prose -cutrix in the case, belongs to village Kalote where she used to reside with her mother Pano Devi (PW -3). Her father Prithi Chand (PW - 5) used to remain away from {he village because of his being in service. The accused, who belongs to Jammu area, was working as a domestic servant in the house of one Bias Dev in the year 1995. The accused had developed intimacy with the prosecutrix and had been persuading her to marry him. On the night intervening 22nd/23rd of June, 1995, when the prosecutrix was sleeping in a room of her house, the accused from the front window asked her to come out of the house which she declined. The accused, however, threatened her thereby forcing the prosecutrix to come out of the room and thereafter she was taken away by the accused with him to Jammu area. The accused has been removing the prosecutrix from one place to another and had been committing rape on her on ever night. On 23.6.1995 when PW -3 did not find the prosecutrix at home, the matter was reported by her to the Police vide her statement under Section 151 of the code of Criminal Procedure Ext. PF on the basis of which First Information Report Ext. PL was recorded at Police Station, J Chairi. The prosecutrix was recovered from a place known as Jhanghotra and was handed over to her father (PW -5) vide memo. Ext. PD. The prosecutrix thereafter was got medically examined and the MLC about such medical examination is Ext. PA. As per the opinion given therein, no mark of injury was found on the person of the prosecutrix. The opinion of Dental Surgeon was also obtained about the age of the prosecutrix and as per such opinion her age at the relevant time was about 13 to 16 years. Her ossification test was also conducted for determination of her age and the opinion in this regard is Ext. PC/1 whereby her age at the relevant time has been opined to be between 18 to 20 years. The "Salvar" of the prosecutrix was taken in possession at the time of her medical examination. On arrest of the accused, he was also got medically examined and MLC in this regard is Ext. PG whereby it has been opined that there was nothing to suggest that the accused could not perform sexual intercourse. On production by the accused, his underwear was also taken in possession by the police vide memo. Ext. PE. The aforesaid wearing apparels of the accused and the prosecutrix along with the slides containing vaginal smear and vial containing vaginal swab which were taken at the time of the medical examination of the prosecutrix, were sent for chemical analysis to the H.P. State Forensic Science Laboratory. As per the opinion given by the Deputy Director of the aforesaid Laboratory, human semen was found on the underwear and vaginal smear and human semen and human blood was found on the "Salvar". Blood was detected in the shirt and the vaginal swab. During the course of investigation, the certificates Exts. Ph.PJ and PK about the date of birth of the prosecutrix were also obtained by the investigating agency. Ob completion of the investigation, a charge -sheet under Sections 363,366 and 376 of the Indian Penal Code was submitted by the Officer In charge, Police Station Khairi against the accused as a consequence whereof a charge under Sections 363,366 and 376 of the Indian Penal Code was framed against the accused by the learned Sessions Judge, Chamba.

(3.) To prove the charge against the accused, prosecution examined 14 witnesses.