KAMLA NAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is filed by Kamla Nand (hereinafter referred to as 'the appellant') against the judgment and order dated 1-6-1998 passed by learned Sessions Judge, Shimla in Sessions Trial No. 5-S/7 of 1997. By the impugned judgment the trial Court convicted the appellant of the offence punishable under S. 376 read with Section 511 of the Indian Penal Code and sentenced him to undergo five years' rigorous imprisonment and to pay fine of Rs. 1000.00 and in default of payment of fine, the defaulter was to undergo rigorous imprisonment for period of six months.

(2.) The facts of the prosecution case are as follows : The appellant aged about 52 years was employed as Chowkidar in MES, Jutogh Cantt., Shimla in the year 1995. His colleague PW-5 Mohinder Singh along with his family had lived in the neighbourhood of the appellant for about eight years. Thereafter, P.W. 5 shifted to another quarter which was at a distance of about 5-10-minutes walk from the quarter of the appellant. They become friendly and started visiting each other's place quite frequently. On 3-9-1995 the appellant went to the quarter of PW-5 to watch T. V. Serial "Chanderkanta'. The screening of the episode of the serial was over at 10 A.M. Soon thereafter PW-5 and his wife PW-2 Smt. Kala Devi requested the appellant to lend a sum of Rs. 500.00 to them. The appellant said that he had ready cash with him at his place and PW-5 should send someone to collect the money. P.W. 5 wanted to take his two younger daughters to barber's shop for hair dressing and so he asked the appellant to take his elder daughter the prosecutrix (real name withheld) aged about eight years with him and to hand over the money to her. PW-5 soon left for barber's shop and shortly thereafter the appellant went to his quarter accompanied by the prosecutrix. On reaching his quarter, appellant took out five currency notes of the denomination of Rs. 100.00 each and put them in a plastic cover and placed the cover on a wooden box. Then he physically lifted the prosecutrix and put her on his cot. After that he removed his pant and underwear and also removed the salwar of the prosecutrix and started rubbing his male organ on her vagina. He also gave teeth bite on her cheek. When the prosecutrix cried, the appellant threatened her that in case she narrated the incident to anybody she would be done to death and also allured her by giving a currency note of Rs. 10.00 saying that she could keep that money with her. When the prosecutrix reached home, her mother PW-2 noticed teeth mark on her left cheek. PW-2 asked the prosecutrix as to how mark had appeared on her left cheek. The prosecutrix either due to fear or the temptation of retaining the currency note of Rs. 10.00 initially told her mother that mosquitoes had caused bite mark on her cheek. But when the mother told the prosecutrix that no such mark was seen by her earlier when she had taken the prosecutrix to bath room the prosecutrix came out with the truth. In the meantime P.W. 5 also returned from the barber's shop. He was informed by PW-2 about what the prosecutrix had disclosed. PW-5 took the girl to the residence of Commanding Officer Mr. B. K. Bounde (Garrison Engineer) who in turn, called the police on telephone. P.W. 10 Arjun Singh. Asstt. Inspector, In-charge Police Post, Jutogh came and recorded the statement of the prosecutrix under Section 154, Cr. P.C. mark Ext. PA which was sent to Police Station, Boileagunj). On the basis of the said statement First Information Report Ext. PF was registered by P.W. 4 Jeet Ram, Inspector/SHO, Police Station, Boileagunj. The police got the prosecutrix medically examined from PW-11 Dr. Suman Gupta, Radiologist, Din Dayal Upadhya Hospital, Shimla. No injury on any part of the body of the prosecutrix was found except reddish semi circular bruise on the left cheek measuring 3 cm x 1 cm and small tear at 7 O'clock position in the hymen about 3 mm into vagina. In her Medico-Legal Report Ext. PB Dr. Suman Gupta recorded the probable duration of the injury within 24 hours. According to the opinion of Dr. Gupta it was a case of attempted rape and not of the actual rape and the abrasion that was noticed on the cheek of the prosecutrix could have been the result of teeth bite.

(3.) The investigation of the case was conducted by P.W. 10 ASI Sh. Arjun Singh. PW-2 handed over currency notes of Rs. 510.00 to the Investigating Officer which were brought by the prosecutrix from the quarter of the appellant. He visited the spot and prepared the site plan Ext. PJ. Bedsheet spread on the bed of the appellant was also taken into possession vide seizure memo Ext. PJ. The appellant was arrested on the very day of the occurrence and he was got medically examined from PW-7 Dr. R. M. Shasni, Medical Officer, Ripon Hospital, Shimla. As per Medico-Legal Certificate Ext. PH Dr. Shasni found nothing suggesting that the appellant was incapable of performing sexual intercourse. The male organ of the appellant was not circumcised and the doctor also noticed smegma inside the penetration. The underwear of the appellant was also taken into possession which was sent to chemical analysis along with bedsheet. Statements under Section 313, Cr. P.C. of the witnesses were recorded by the Investigating Officer. On receipt of the report of the Chemical Examiner mark Ext. PK. Police report under S. 173, Cr. P.C. was filed against the appellant in the Court of Addl. Chief Judicial Magistrate, Shimla who after complying with the requirement of Section 207 of the Code of Criminal Procedure committed the case to the Sessions Court.