HARI RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 7-7-2000 passed by the learned Additional Sessions Judge, Solan whereby appellant/accused (hereafter referred to as 'the accused') had been convicted under Ss. 376 and 506 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs. 20,000.00 and in default of payment of fine to undergo simple imprisonment for one year under S. 376 of the Indian Penal Code, and to simple imprisonment of two years and fine of Rs. 5,000.00 and in default of payment of fine to undergo simple imprisonment for six months under S. 506 of the Indian Penal Code.

(2.) The case of the prosecution against the accused, in brief, is that the prosecutrix (PW-1) was studying in 4th standard in Primary School, Kem Wali in the year 1999. On the asking of the accused, the prosecutrix along with Nisha (PW-11), Reena, Pushpa Devi (PW-12) and Gurdeep had gone to Nand on 5-10-1999 to attend the tournament. On 6-10-1999 at about 7-00 p.m. when the prosecutrix along with other girls was present in the room where they were to stay for the night, the accused came there and took the prosecutrix with him to a lonely room on the pretext of Gidha. The accused shut the door of the room and asked the prosecutrix to open the string of her Salwar' which she refused to do. Therefore, the accused himself opened the string of the 'Salwar' of the prosecutrix, laid her down and committed rape on her. The accused threatened the prosecutrix not to divulge the occurrence to anyone failing which he would slap her. When the prosecutrix was returning to the room meant for the stay of the girls, a teacher Veena met her on the way who enquired from her as to from where she was coming. The prosecutrix informed her of the rape committed on her by the accused. One Sarwan Singh (PW-6), another teacher, at that time was standing on the ground and enquired from her as to what had happened. The prosecutrix narrated the occurrence to him also and she was assured by Veena and PW-6 that they would deal with the accused. On the next morning, the prosecutrix divulged the occurrence to Reena. Pushpa Devi (PW-12), Jasbir Kaur and Raj Kumari, Jasbir Kaur and Raj Kumari assured the prosecutrix that they would make enquiries from the accused about the occurrence and asked the prosecutrix to wash her 'Salwar' which was bloodstained. On returned home, the prosecutrix on 9-10-1999 narrated the occurrence to her mother. Uncle of the prosecutrix Mohinder Singh (PW.3) also came to know of the occurrence. Statement of the prosecutrix under S. 154 of the Code of Criminal Procedure Ext. PW-27/A regarding occurrence was recorded by S.H.O. M.P. Baam (PW-35) on the basis of which FIR. Ext. PW-27/B was recorded at Police Station. Ramshehar and the investigation in the matter followed. The prosecutrix was got medically examined from Kavita Mahajan, Medical Officer (PW-21) on 11-10-1999 at 4-15 p.m. in CHC Nalagarh. The MLC regarding such examination is Ext. PW-21/A showing that no external marks of injury were seen on the person of the prosecutrix but vulva was oedmatous and congested, discharge per vaginum was present - White in colour and hymen was ruptured. The opinion given by PW-21 is that sexual assault had occurred and the radiological age of the prosecutrix was 9 to 12 years. The opinion given by PW-21 about the age of the prosecutrix is based on the opinion Ext. PW-32/F which had been given by B. K. Bhardwaj, Radiologist (PW-32). The shirt and the 'Salwar' the prosecutrix was wearing at the time of the occurrence but had washed on 7-10-1999, were taken in possession by the police vide memo. Ext. PC. Copies of the various records regarding appointment of the accused as a teacher, leave applications and the record relating to the admission of the prosecutrix in the school etc. were also taken in possession. Statement of the accused Exr. PW-14/A was recorded under S. 27 of the Evidence Act regarding the identity of the place of occurrence which the accused allegedly identified vide memo. Ext. PH. Police also took in possession the communication addressed by the accused to Kendriya Adhyaksh Panjehra admitting therein the maltreatment meted out to the prosecutrix and tendering apology for his acts of misconduct. Birth certificate of the prosecutrix Ext. PW-22/A showing the date of birth of the prosecutrix as '10-2-1988' was also taken in possession. The accused was also got medically examined and was so examined by Sandeep Narula. Medical Officer (PW-33). MLC. issued by him is Ext. PW-33/A and as per his opinion Ext. PW-33/B, the accused was capable of performing sexual intercourse. On physical examination of the accused, two scratch abrasions and a bruise were found on his person. However, no mark of external injury on the genital part was found. Sample of the pubic hair and swab was taken and was handed over to the police for further action. The shirt and 'Salwar' of the prosecutrix taken in possession vide memo. Ext. PC, were sent to the State Forensic Science Laboratory for chemical analysis and on such analysis, blood or semen was not found on the said clothes.

(3.) After collecting the material and recording the statements of the witnesses, the Officer Incharge, Police Station Ramshehar submitted a charge-sheet against the accused under Ss. 376 and 506 of the Indian Penal Code, against Raj Kumari under S.201 of the Indian Penal Code and against Sada Ram, Dev Prag, Gian Singh, Sarwan Singh, Jasbir Kaur and Veena Chauhan under S. 176 of the Indian Penal Code. Sada Ram, Jasbir Kaur, Veena Chauhan and Sarwan Singh against whom a charge under Ss. 201 and 176 of the Indian Penal Code was framed by the trial Court, were discharged by this Court vide its order dated 19-4-2000 passed in Criminal revision Petition Nos. 35, 36, 37 and 38 of 2000. A charge under S. 376 and 506 of the Indian Penal Code was framed against the accused and a charge under S. 201 and 176 of the Indian Penal Code was framed against Dev Prag, Gian Singh and Raj Kumari.