STATE OF HIMACHAL PRADESH Vs. SH. JAGDISH CHAND @ JAGGU, SON OF SH. BHAGI CHAND, RESIDENT OF DIBALU, P.S. SADAR, DISTTT. MANDI, H.P.

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 25.2.2005, passed in Sessions Trial No. 9 of 2002, by learned Sessions Judge, Mandi, acquitting the respondent/accused for the offence punishable under Section 376 of the Indian Penal Code. The prosecution case, in brief, is that on 6.11.2001 at about 7:00 A.M., the victim had gone to fetch water from the water tap and while coming back she was caught hold by the accused. She was pushed and taken down side in the bushes and was sexually assaulted. In the meantime, Ram Dass came in search of the victim and found the bucket of victim lying on the path. At some distance Chappal of the victim was also lying. After going little ahead, Ram Dass (PW -1) noticed that accused was holding victim and after seeing Ram Dass, the accused ran away. However, it was divulged by the victim to Ram Dass that she has been sexually assaulted by the accused/respondent. After investigation and medical examination, accused was charged for the aforesaid offence.

(2.) IN order to prove its case, prosecution examined as many as 11 prosecution witnesses, whereas, the defence has adduced 3 witnesses. Accused in his statement recorded under Section 313 of the Code of Criminal Procedure, denied the prosecution case.

(3.) PW -2 (victim, name not given) stated that Ram Dass (PW -1) is her brother -in -law (Jija) with whom she had been living for the last 8 -9 years. She was 14 years of age as her date of birth was 1987. On 6.11.2001, at about 7:00 A.M., she went to fetch water from the water tap and was returning home with water bucket, accused caught hold her and forcibly took her towards down side in the bushes and committed rape upon her. While she was being sexually assaulted her brother -in -law (PW -1) was calling her and on hearing the voice, accused got up and left the spot. PW -1 came to the spot and took the victim to home and on making inquiry, PW -2 narrated the incident to him. Thereafter, PW -2 took bath and changed the clothes and went to the Police Station and lodged the report Ex.PA and thereafter she was taken to hospital for medical examination. PW -2 has further stated in cross examination that from the Taur tree, a path goes to the main road and the same path goes to village Tarnoh and there are 100 -150 houses in village Taroh. PW -2 has further stated in her cross examination that accused had taken her to a distance of 300 feet from the Taur tree by dragging her up to the place of occurrence, where there were bushes and stones in the path and through such path accused had taken her to the spot of occurrence and had committed sexual assault on the path itself. Her brother -in -law (PW -1) had been calling her for about half an hour. As stated by PW -2 in cross -examination that PW -1 had called her from the house as well as from the Taur tree and if any one calls from main road, it could be heard in the house of her brother -in -law (PW -1). PW -2 has very categorically stated in cross -examination that her body was not dragged but her feet were dragged up to the place of occurrence. The entire path in between was full of bushes from both sides and passage was quite narrow and accused had been holding her from one hand and had been dragging her to the place of occurrence. The bushes were thorny. PW -2 further stated that even in normal walk, the bushes touch the body. As stated by PW -2 that she remained at the place of occurrence for about 25 minutes, where accused had made her to lie on a stony surface. The spot of occurrence was quite stony and uneven. She tried to save herself. PW -2 further stated that both (she herself and PW -1) left their house for Mandi at about 9.00 A.M. and did not tell about the occurrence to anyone in the village, not even to scooter owner.