HEM RAJ Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The present appeal is directed by the appellant, feeling aggrieved and dissatisfied by the judgment of conviction and sentence passed by the learned trial Court for the offences punishable under Section 376 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ˜ 25,000/ - and also under Section 506 (II) of the Indian Penal Code to undergo rigorous imprisonment for a period of one year and to pay a fine of ˜ 5,000/ -, with the default clauses. Both the sentences were ordered to run concurrently.Brief facts:

(2.) (i) The appellant was put on trial on the allegations that on 29.3.2009 at about 12.00 noon, the prosecutrix accompanied by her mother Smt. Geeta Devi, went to ˜Dalog ­Ghatti to tether their cattle and fetch the grass from ˜Ghasni. At that time, the prosecutrix was studying in 8th standard of Garakufri School and was aged about 14 years. The moment, the prosecutrix started cutting the grass, it started raining. Her mother did not cut the grass, but went at a distance to collect fuel -wood. In the meantime, the prosecutrix started grazing the cattle. Since her mother used to remain unwell, prosecutrix asked her to go back home to avoid wetting by the downpour, but she did not pay much attention to it and went out of her sight. (ii) Around 1.30 p.m., while returning home with the cattle -heads, the prosecutrix met appellant in the jungle. He caught -hold of her and gagged her mouth, threw her on the ground and to satisfy his lust she was sexually assaulted. She resisted and raised noise to call her mother. The button of her sweater got broken. The appellant threatened her with dire consequences. (iii) On hearing her shrieks, her mother rushed to the spot. On seeing her, appellant ran away. (iv) The mother of the prosecutrix saw her clothes lying on the spot. She picked it up and gave to the prosecutrix to wear. (v) The prosecutrix narrated the entire incident to her mother and also disclosed that she suffered injuries on her lips and face on account of tooth -bites by the appellant. (vi)Both of them returned to their home and thereafter went to the Police Station to lodge the matter. The mother of the prosecutrix, Smt. Geeta Devi, lodged FIR Ext.PW1 3/F. (vii) The prosecutrix was got medically examined. The clothes which were worn by her, were not changed. These were sealed by the doctor. (viii) On the clinical examination, the doctor noticed the following injuries on her person: (a) Abrasions four in number on the lateral side of left thigh of the size of .25 cm x 1 cm red in colour. (b) Abrasions three in number on left knee of the size of .25 cm x 1 cm red in colour. (c) Contusions three in number on medial side of left thigh of the size of .5 cm x .25 cm red in colour. (d) One abrasion on back of the size of 4 cm x 1 cm red in colour. (ix) Samples of pubic hair were also taken. Hymen was found ruptured. Tear was present and bleeding was also present. Vaginal slides and swabs were taken and sent to the laboratory for examination. (x) The prosecutrix was also referred to the Radiologist for ascertaining the skeletal age. (xi) The appellant was arrested on the same day. He was also medically examined on 29.3.2009 at 10.15 p.m. His blood was taken for blood -grouping. His clothes including the underwear were sealed and sent for the forensic examination. (xii) The report of the forensic examination is Ext.PB. The blood group of the appellant was ˜A and that of the prosecutrix was ˜B. Human blood of group ˜B was found on the underwear of the appellant and human semen on the underwear of the prosecutrix. The blood traces were detected on the vaginal slides and swabs.(xiii) The appellant denied for DNA test. His statement is Ext.PC, which was recorded before the Magistrate.(xiv)On 30.3.3009, police also took the photographs Exts.PW13/B, 13/C and 13/E of the alleged place of incident and also prepared the site plan Ext.PW13/A, which indicated the marks of struggle.(xv) During the investigation, police took into possession the date of birth certificates Exts.PW3/A and 3/B from Government Senior Secondary School, Gara -Kufri vide memo Ext.PW3/C. Police also took into possession the Pariwar register Ext.PW6/A and birth certificate Ext.PW6/B issued by the Panchayat vide memo Ext.PW6/C, indicating her date of birth as 31 .7.1995 and also took into possession the certificate Ext.PW7/A, i.e., abstract of the admission and withdrawal register and date of birth certificates Exts.PW7/B and PW7/C, produced at the time of her initial admission, vide memo Ext.PW7/D.

(3.) After completing the investigation, Challan was presented in the Court for the trial of the appellant. He was accordingly charge -sheeted for the offences aforesaid and at the end of trial he was convicted and sentenced, hence the present appeal.