BAL KISHAN Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment and order of conviction and sentence recorded by the Additional Sessions Judge (1), Kangra at Dharamshala on 11/07/1997 in Sessions Case No. 6-N/97.

(2.) The appellant was the original accused in the above Sessions case. The case of the prosecution was that on 5/11/1995 at about 7.30 p.m., near 'Hard Khad' of Kot Palahari, he committed rape on Smt. Nirmala Devi, wife of Karam Chand, resident of Nurpur, Tehsil Nurpur, District Kangra. The allegation of the prosecution was that Smt. Nirmala Devi (hereinafter referred to as 'the prosecutrix') was working as a labourer along with her husband in order to earn livelihood at Nurpur. On 5/11/1995, the prosecutrix along with her two children was going to the house of her parents at village Kot Palahari. By mistake, she boarded a wrong bus, which was from Jassor to Mink-gran enroute Nurpur Chogan. She was to get down from the bus at a place known Bhadwar for going to her parental home, but due to boarding of a wrong bus, she had to get down at Khushi Nagar as the bus was going on a different road. In the meantime, according to the prosecution, a tractor came from the opposite side. It was driven by the accused. The driver was known to the prosecutrix. He offered the prosecutrix to sit in the tractor under the pretext that he would leave her at Bhadwar, upon which the prosecutrix boarded the tractor. She was dropped by the accused at Nagni Bus stand. By that time, it was dark. She had to go to Kot Palahari from Nagni via Rinna Kot Palahari, which was about 4 kms. Where she had to go on foot. The accused, addressing the prosecutrix as "sister", volunteered to leave her along with her children at Kot Palahari. The prosecutrix agreed to the suggestion and started to proceed towards Kot Palahari. When they reached at a distance of 2 kms. across the Hard Khad, which was a lonely place and was surrounded by a forest, the accused got down the child of the prosecutrix from her back side, left him on the ground where her second child (son) was walking on foot and taking undue advantage of darkness and in spite of her protest, committed rape on her. He also threatened her that if she would disclose the occurrence, he would kill her and her children. The accused thereafter fled away and the prosecutrix along with her children with great difficulty reached the house of her parents. Accused was named in the complaint as Bal Kishan, son of Prem Singh, resident of Tika Ban, Gram Panchayat, Nagni.

(3.) On reaching the house of her parents, the prosecutrix narrated the incident to her mother Hardei. On the following morning, the prosecutrix, along with her mother, went to the then Pradhan, Gram Panchayat, Kot Palahari, Ramu alias Ram Kumar and narrated the incident to him. With the help of Pradhan, she filed a written complaint, Ex. PW 3/A along with a forwarding note by the Pradhan, which was Ex. PW 4/A to S.H.O. Police Station, Nurpur. On receipt of the complaint, the Sub Inspector/SHO ordered registration of formal FIR vide endorsement Ex. PW 5/B, on the basis of which formal FIR Ex. PW 8/A was registered. During the investigation, the prosecutrix was medically examined by Dr. Ms. Suman Sexana, Medical Officer of Civil Hospital, Nurpur, who issued Medico-Legal Certificate Ex.PW1/B. The shirt, Ex. P1 and trouser, Ex. P2 (Salwar) of the prosecutrix were also taken into possession. On 8/11/1995, the accused was arrested. At the request of the police, he was also medically examined. Dr. R. K. Chaudhary, who found the accused fit to perform sexual intercourse and issued Medico-Legal Certificate, Ex. PW 2/B. Underwear of the accused, Ex. P3 was seized by the prosecution at the time of medical examination. The police also visited the spot and prepared a rough site plan Ex. PW 8/C. At the place of occurrence, some pieces of glass bangles were found and seizure memo was prepared at Ex. PW 4/B. On the basis of the report of Chemical Analyst. Ex. PX. Dr. Ms. Suman Saxena opined that possibility of rape could not be ruled out. On completion of the investigation, the accused was sent for trial to the Court of Judicial Magistrate Ist Class, Nurpur, who in turn committed the case to the Court of Sessions Judge, Kangra at Dharamshala by an order dated 7/01/1997.