KIRPA RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE appellant hereinafter to be referred as "the accused", has challenged his conviction passed in Sessions Trial No.15 of 2002, 68 of 2004, on 19.4.2005 by the learned Presiding Officer, (FTC), Mandi, for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, whereby he has been sentenced to undergo imprisonment as follows:- Offence Under Sentence Section Section 376 I.P.C. Rigorous Imprisonment for seven years and to pay a fine of '10,000/- and in default of payment of fine, rigorous imprisonment for one year. Section 363 I.P.C. Rigorous Imprisonment for four years and to pay a fine of '5,000/- and in default of payment of fine, rigorous imprisonment for six months. Section 366 I.P.C. Rigorous Imprisonment for four years and to pay a fine of '5,000/- and in default of payment of fine, rigorous imprisonment for six months. All the aforesaid sentences were ordered to run concurrently and the benefit of Section 428 of the Code of Criminal Procedure was also given.

(2.) IN short, the prosecution case as emerges from the evidence on record can be stated thus. IN the year 1999, the prosecutrix (PW2) daughter of PW1 Mohinder Kumar was a student of 10+1 standard in Government Senior Secondary School Chail- Chowk. The accused was her class-fellow. (ii) On 5th March, 1999, she had gone to the School and after the classes were over, she accompanied the accused, his sister and one Ram Singh to village Janjehali for sight seeing. (iii) On reaching Janjehali, the sister of the accused left their company on the pretext that she would return after sometime. They waited for her, for quite some time, but did not return. The prosecutrix was feeling unwell and it was also growing dark. The accused is alleged to have given her some pill. On taking it, she felt intoxicated. When she gained her senses, she found herself in a naked condition in a room in village Majhakar. She dressed herself and alleged that the accused had committed sexual intercourse with her without her consent. IN the meantime, Parmanand, Jiwa Nand, Hansa, Dhanu and Dile Ram Paharia had arrived there. They including the accused threatened her with dire consequences and compelled her to solemnize marriage with the accused. She made every effort to escape, but the accused alongwith other persons were large in number, thus she could not succeed. (iv) From village Majhakar, the prosecutrix was taken to village Bushrani. The accused alongwith his companions aforesaid told her that when somebody would ask her she should pretend herself having been married to the accused. At Bushrani, they stayed for 2-3 days and from there, she was taken to village Jachh, where they remained for two days, thereafter she was taken to Kamru-Nag. After about 2-3 days, from there she was taken to village Sunni to the house of the relative of the accused where they stayed for a day, then she was taken to Shimla. (v)The accused is alleged to have prepared some documents in consultation with the lawyers at Shimla to get bail as the father of the prosecutrix had already lodged an FIR on 9.3.99 in the Police Station. It was disclosed by the accused that both of them had married whereas no marriage was solemnized. From Shimla, they went to the house of accused Dile Ram Paharia at Chachiot. All the aforesaid persons threatened her to follow their dictates to make a statement against her parents. After spending a day at Chachiot, accused brought her to his house. (vi) Next day, Police had come to the house of accused alongwith her father and other relatives and took her into the custody and given on supurdari to her parents. (vii) She alleged that while her stay at Sunni, she was raped by the accused. (viii)The prosecutrix, during investigation handed over her Salwar and the underwear to the police which were taken into possession vide memo Ext.PW2/A. She was also got medically examined on 27.3.99 from PW6 Dr. Priya. Her LMP was on 9th March. During her medical examination, the Doctor did not find any sign of inflammation on her private parts nor noticed any sign of violence on her body. The hymn was having old tears, but without any sign of inflammation. Doctor took vaginal swabs and handed over to the police for its examination, however no report of such examination has been produced. The Medico Legal Certificate Ext.PW6/A was issued by the Doctor on her clinical examination as aforesaid. (ix) To ascertain the age of prosecutrix, she was referred for the radiological examination, which was conducted by PW13 Dr. Rakesh Kumar. On examination of the ski-grams Exts.PW13/B and C, he opined that the prosecutrix was aged about 16 to 17 years. (x)The accused was also got medically examined. He was found capable to perform the sexual intercourse. (xi) During the investigation of this case, statement of the prosecutrix was recorded under Section 161 of the Code of Criminal Procedure on 20.3.1999, then a supplementarystatement was also recorded on 24.3.1999 purported to be correct version than the earlier as per her parents. Thereafter she was also produced before a Magistrate and her statement under Section 164 of the Code of Criminal Procedure was also recorded on 5.4.1999. (xii) The father of the prosecutrix had produced birth certificate Marks-'A' and 'B' to the police alongwith certificate Ext.PW18/A issued by the office of Gram Panchayat Brikhmani to the effect that the family of the prosecutrix was permanent resident of village Brikhmani. Police also took into possession the copy of Pariwar register Ext.PW17/A showing her date of birth to be 11.3.1983. A certificate from the Headmaster of the School (Mark- A) was also obtained by the police. (xiii)The INvestigating Officer came to the conclusion that the prosecutrix at the relevant time was less than 16 years of age and according to her statement, she was raped by the accused. (xiv) The accused applied for and was granted the anticipatory bail. Other persons namely Parma Nand, Jiwa Nand and Ram Singh were arraigned as co- accused in the case, whereas co- accused namely Dile Ram Paharia, Dhani Ram @ Dhanu and Hans Raj @ Hansa had died during the pendency of the trial.

(3.) TO prove its case, prosecution examined its witnesses. All the accused were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon each of the accused persons were put to each of them, to which they denied. The accused persons were called upon to enter into their defence, but they did not lead any evidence in defence.