STATE OF HIMACHAL PRADESH Vs. SHYAM LAL

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 22.3.2001 passed by learned Addl. Sessions Judge, Shimla HP in Sessions Trial No. 16 -S/7 of 2000, thereby acquitting the Respondent / accused for the offence under Section 376/511 of Indian Penal Code.

(2.) THE prosecution case is that on 24.3.1999 at about 1.30 PM, Smt Kanta Devi, PW -2, mother of the prosecutrix (name not given), accompanied with her husband Ashwani Kumar PW -3, reported at Police Post, Lakkar Bazar, Shimla vide Rapat Rojnamcha Ex PW -5/A that she along with her three children and her husband was residing for the last three years in the house of Chet Ram Sharma in village Parech, Ward No. 2 as tenant. Her husband was working as a hawker and was selling vegetables on Rivoli Cinema Road, Shimla. He generally leaves home at 7.30 in the morning and used to return to home at about 9.30 in the night. PW -2 Kanta Devi further stated that she was having three children. Her two daughters aged about five years and 3 1/2 years respectively and a son aged about one year used to live alone in the house . On 23.3.1999 at about 12 noon when she was working in her house at village Kuftadhar and the victimprosecutrix had gone out of the house for playing on the second floor as Smt. Kanta Devi was residing in third floor. After some time, PW -2 heard her shrieks and after hearing the same, she came out from her house and standing in front of the house along with the railing called her daughter. The prosecutrix came out of the house of the accused weeping and on inquiry, victim told that the accused asked her to remove her pant and when she did not do so, accused himself removed her pant and thereafter the accused also removed his own pant, thereafter she was laid down on the cot and the accused thereafter tried to sexually assault her. PW -2 has narrated the incident to PW -3 Ashwani Kumar, her husband, when he returned back to him. On investigation, accused was charged for the aforesaid offence.

(3.) THE police sent the prosecutrix for her medical check up to IGMC, Shmla on 24.3.1999 and the concerned doctor issued MLC Ex PW -6/D. As per the opinion of the doctor, he did not notice any sign of attempt of penetration of genitilia or anal carnal on examination and no mark of any type of injury was also noticed on the body of the victim - prosecutrix. The child history was taken from the parents and nothing could be sent for sampling, as the child has taken bath and changed her clothes. However, no sign of any sexual assault was noticed by the doctor, whereas on medical examination of the accused/Respondent made by PW -1 Dr. Praveen Bhatia, he was found capable of sexual intercourse. The victim - prosecutrix was produced before the Court. Learned trial court found the victimprosecutrix immature child and incompetent to be examined as witness.