GITA RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) In Sessions Trial No.21-S/7 of 1998, the Sessions Judge, Shimla, convicted the appellant-accused for offence under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 7 years with the fine of Rs.1000.00. In default of payment of fine the appellant shall undergo further rigorous imprisonment of one year. The appellant has challenged his conviction and sentence in this appeal.The prosecutrix (PW-1) is the wife of Raju (PW-3) . They are the residents of village Chadach, Tehsil Chopal, District Shimla. In the year 1997, PW Raju was employed as Chowikidar by Bija Ram (PW 5) to look after his orchard at his "Dogri" (out house) located about 1 Km. away from his village Kuhl. Both the husband and wife started living in the Dogri of PW Bija Ram.

(2.) The case of the prosecution against the appellant is that on 25-5-1997, PW 3 left the 'Dogri' around 6.00 a.m. for village Shantha to attend a local fair. Prosecutrix remained behind in the 'Dogri'. At about 6.30 a.m. appellant came to the aforesaid 'Dogri' and made inquiry from the prosecutrix about the whereabouts of her husband. She told the appellant that her husband had gone to village Shantha to see the fair.The appellant then caught the prosecutrix her arm and swang her around himself with full force. Then he released the arm of the prosecutrix and as a result thereof she fell down at one corner of the room. The appellant then over pwered her. He stripped her naked by breaking loose the string of her salwar. Then he committed rape on her. After committing the crime, he ran away from the scene of the occurrence. The prosecurtix changed her clothes and went to the house of her in-laws in village Chadach, which is at a distance of about 6 kms. from the 'Dogri'. She narrated the incident to her mother-in-law Smt. Budhi Devi (PW 2), who advised her to keep quiet about the incident as it would likely to cause embarrasment to the prosecutrix and also other family members. PW 3 returned to village Chadach after spending three days at village Shantha and after his arrival the prosecutrix narrated the entire incident to him. PW 3 in turn informed his father about the incident, who called a Panchayat of elderly persons of the village. The Panchayat members gave the verdict that the accusation levelled by the prosecutrix against the appellant was false and imposed a fine of Rs. 150.00 upon the prosecutrix. On 12-6-1997, an anonymus complaint was received by the Sub Divisional Magistrate, Chopal, stating therein that the prosecutrix who belongs to Scheduled caste was subjected to forcible sexual intercourse by the appellant and that when the matter was reported to the Panchayat , no action was taken against the appellant but on the other hand prosecutrix was punished by imposing fine. The Sub Divisional Magistrate forwarded the complaint to station House Officer, Police Station, Chopal who summoned the prosecutrix and her husband to the Police Station. The prosecutrix reported the matter to the police on the basis of which First Information Reprot Ext. PA was recorded which was signed jointly by her and her husband PW 3. The police got the prosecutrix medically examined from Dr. Shyam (PW 6) on 19-6-1997, who issued medico legal certificate Ext. PD regarding medical examination of the prosecutrix. As per his opinion the prosecutrix had changed her clothes several times and had also taken bath after the incident. She had been menstruated for the last 2 days and, therefore, vaginal swab could not be taken for examination. No injury was found on the person of the prosecutrix nor was any scar of any old injury noticed. After arrest of the appellant he was also medically examined by PW 6, who, on such examination vide medico legal certificate Ext. PF opined that he did not find anything suggesting that the appellant was not capable of performing sexual intercourse. Dr. Shyam did not find any injury mark on the person of the appellant.

(3.) The investigation of the case was conducted by Bidhi Singh (PW 9), Sub Inspector. He visited the spot and took into possession underwear (Ext. P1), salwar (Ext. P2) and shirt (Ext. P-3), handed over to him by the prosecutrix. He also prepared a site plan (Ext. PH) and recorded the statements of the witnesses. The wearing appears of the prosecutrix so taken into possession were sent to Forensic Science Laboratory for analysis. In report (Ext. PJ) of the Chemical Analyzer, under-wear and salwar contained human blood and human semen.