SURESH KUMAR Vs. STATE OF H P

JUDGEMENT

(1.) The appellant-accused (hereafter referred to as "the accused") by this appeal, has assailed the judgment dated 18-8-1999 passed by learned Sessions Judge, Kangra at Dharamsala whereby the accused has been convicted under Sections 363, 366 and 376, I. P. C. and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000.00 under Section 376, I. P. C. and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months and to rigorous imprisonment for a term of two years and to pay a fine of Rs. 1,000.00 under Section 366, I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month.

(2.) The prosecution case, in brief, is that the prosecutrix (PW-2) daughter of Nirmla Devi (PW-1) and Jagar Nath (PW-3) was, on 23-3-1996 present in her house in village Sadwan. The accused and Ishwar Dass alias Sheru (who was a co-accused before the trial Court and will be referred to as such hereafter) came to her house. Accused asked her to marry him. On her refusal, the accused and the said co-accused threatened to kill her brother. They made her to accompany them at the point of a knife and was taken to different houses and finally to the house of Ashok Kumar (who was also a co-accused before the trial Court and is referred to as such hereafter). From there, she was brought to Kunalpathri temple for performing marriage with the accused but she refused and the mandir people also refused to perform the marriage. The accused and the co-accused then took the prosecutrix to the Court premises at Dharamsala where she was forced to sign an affidavit regarding solemnisation of her marriage with the accused and such affidavit alongwith affidavit of the accused to the same effect were attested by R. S. Rana, Advocate (PW-5). She was then taken back to the house of co-accused Ashok Kumar at Shahpur where she stayed for five days and during this period, the accused subjected her to sexual intercourse.

(3.) When the mother of the prosecutrix (PW-1) returned home from the fields. She found the prosecutrix missing and started searching for her in the neighbourhood and also at her parents house and finally reported the matter to the police on 26-3-1996 on the basis of which formal FIR Ex. PW-1/A was registered at Police Station, Nurpur by ASI Sharif Mohammad (PW-10). The father of the prosecutrix (PW-3) who was, at the material time, working at Kullu was informed about the occurrence whereupon he returned home. On the basis of information received, the police alongwith PW-2 recovered the prosecutrix from the house of co-accused Ashok Kumar vide memo Ex. PW-3/A and her person was handed over to PW-2 vide memo Ex. PW-3/B. The prosecutrix was got medically examined and Dr. D. R. Riyal (PW-12) who examined her issued the MLC Ex. PW-12/B and opined that the possibility of sexual offence qua the prosecutrix could not be ruled out. At the time of medical examination of the prosecutrix. PW-12 took in possession the underwear, the prosecutrix was wearing at the relevant time and also collected vaginal swab, prepared the slides and after sealing, handed them over to the police to get them analysed from the Chemical Examiner. After arrest, accused was also got medically examined and Dr. Parveen Bhardwaj who examined him vide MLC Ex. PW-13/A opined that the accused was capable of performing sexual intercourse. At the time of medical examination, his underwear was also taken in possession by PW-13 and handed over to the police for chemical analysis. As per the report regarding chemical analysis of the aforesaid articles Ex. PX, nothing incriminating was found in the articles so analysed except the underwear of the prosecutrix which was found stained with human blood. During the course of the investigation, the police also took in possession the age certificate Ex. PW-14/A of the prosecutrix and the abstract of the register Ex. PW-14/B. On completion of the investigation, a charge sheet under Sections 363, 366, 368 and 376, I. P. C. was submitted by the officer in charge. Police Station, Nurpur against the accused and his co-accused.