KAPIL DEV Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is filed against an order of conviction and sentence recorded by Sessions Judge, Una on 1st April, 1997 in Sessions Case No. 24 of 1995 (Sessions Trial No. 1 of 1996). By the said judgment, the learned Sessions Judge convicted the accused for an offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as the Code). After hearing the accused and his counsel on quantum of sentence, the learned Judge ordered him to undergo imprisonment for two years and to pay fine of Rs. 2,000. In default, he was directed to undergo further imprisonment for three months. Final order in paragraph 28 of the judgment read as under: "As a sequal of the above I accordingly sentence the accused to undergo imprisonment for a period of two years and to pay a fine of Rs. 2,000. In default of payment of fine he shall further undergo imprisonment for three months. In case the fine is realised from the accused then the same be given to the prosecutrix. Parna Ex. P -l be destroyed after the expiry of the period of two months. The file after completion be consigned to record room."

(2.) The case of the prosecution was that the accused was resident of village Dharamshala Mohanta, Tehsil Amb. One Tilak Raj was also residing in that village. He was resident of village Bhadarkali, but was staying with his father -in -law at Dharamshala Mohanta along with his wife Smt. Kamla Devi and his children. Tilak Raj had a daughter named Mamta. She was stated to be aged about 15 years in March, 1994. Age of the accused was about 21 years. According to the prosecution, on March 30, 1994 at about 12.00 noon, the prosecutrix (Mamta) was grazing cattle in the pasture land situated nearby village Dharamshala Mohanta. The accused too happened to graze his cattle there. Sonia and Nitu were also grazing their respective livestock in the jungle. The accused was collateral of the father of Smt. Kamla Devi, mother of the prosecutrix. The allegation of the prosecution was that finding her all alone, the accused went there, dragged her into the bushes. She was also threatened not to raise any alarm. She was caught hold by the accused, took her to the bushes and committed rape on her. It was the case of the prosecution that one Vijay Kumar was present and reached the place from where cries were emanating. Vijay Kumar was said to be the maternal uncles son of the prosecutrix. As Vijay Kumar reached the place of offence, the accused ran away. The prosecutrix after coming to her home narrated the incident to her mother. The father of the prosecutrix was not in the village, as he had gone out. He returned on March 31, 1994 and came to know about the incident in question. He then took the prosecutrix to the Police Station, Amb. A complaint was lodged on 1st April, 1994, on the basis of which First Information Report No. 45 of 1994 was registered. After usual investigation, a case was filed, the accused was asked as to whether he had committed an offence. A charge was framed for an offence punishable under Section 376 of the Code by the learned Sessions Judge on January 3,1996. The accused pleaded not guilty to the charge. His defence was of denial. In defence, he examined one Gurbachani Sharma, Centre Head Teacher of Dharamshala Mohanta Government Primary School as a defence witness.

(3.) In order to prove the case against the accused, the prosecution examined seventeen witnesses. The Court also considered arguments of the learned Public Prosecutor as well as the defence counsel. Appreciating the evidence on record, the learned Judge came to the conclusion that it was proved beyond reasonable doubt by the prosecution that on March 30, 1994, the incident took place. The prosecutrix was below 16 years of age on that day It was also proved by the prosecution to the hilt that the accused committed rape on the prosecutrix and he was liable to be punished under Section 376 of the Code. The learned Sessions Judge accordingly convicted the accused and ordered him to undergo sentence as observed hereinabove. It is that order of conviction and sentence which has been challenged by the appellant -accused in this Court.