LAWS(HPH)-2003-6-13

SUBHASH CHAND @ PAPPI Vs. STATE OF H.P.

Decided On June 11, 2003
SUBHASH CHAND @ PAPPI Appellant
V/S
STATE OF H.P. Respondents

JUDGEMENT

(1.) This appeal is directed against the judgment dated 4.5.2001 passed by the learned Sessions Judge, Bilaspur whereby the Appellant/accused (hereafter referred to as 'the accused') has been convicted under Sections 376 and 506 IPC and has been sentenced to rigorous imprisonment for 10 years and fine of Rs. 2,000 and in default of payment of fine to undergo rigorous imprisonment for six months under Section 376 IPC and to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000 and in default of payment of fine to undergo further rigorous imprisonment for three months under Section 506 IPC.

(2.) Case of the prosecution against the accused in brief is that the prosecutrix (PW-1) is a resident of village Jhabola. About 7 or 8 months before the lodging of the FIR she had gone to the shop of the accused in village Gugga at a distance of about one kilometer from her house to purchase some domestic articles. When she was coming back from the shop the accused caught hold of her near Government Primary School, Jhabola and committed rape on her after gagging her mouth with her shawl (Chadru) disabling her to raise cries. After the commission of the offence the accused threatened the prosecutrix that in case she divulged the occurrence to anyone she would be killed by him. Because of fear of the accused prosecutrix did not narrate the incident of rape to anyone. About 15 days thereafter when the prosecutrix was going to the shop of Nand Kishore the accused met her on the way caught hold of her gagged her mouth with her shawl and subjected her to rape and again threatened the prosecutrix not to divulge the occurrence to anyone otherwise she would be done to death. As a result of such sexual acts committed by the accused prosecutrix conceived. Her mother Julmi Devi (PW-2) apprehending that prosecutrix was carrying a child in her womb got her examined from Banto (PW-9) a local Dai who confirmed the conception by the prosecutrix. PW-2 made enquiries from the prosecutrix who then narrated the aforesaid incidents to her. Thereafter the matter was reported to the police by the prosecutrix and PW-2 on 4.2.2000 and on the basis of their report FIR Ext. PA was registered at Police Station, Talai and the investigation followed. The prosecutrix was got medically examined and vide MLC Ext. PJ issued by Dr. Sanjay Dhiman (PW-4) the prosecutrix was found carrying pregnancy of 30 to 32 weeks. Radiologist's opinion Ext. PL about the skeleton age of the prosecutrix was obtained and it was opined that she was more than 14 years but less than 16 years at the time of giving of the opinion. The certificate regarding date of birth of the prosecutrix Ext. PM and her School Leaving Certificate Ext. PO were procured and taken in possession according to which her date of birth is 17.12.1986 and thus at the time of rape the prosecutrix was found 13 years old. The accused after arrest was got medically examined and Dr. N.K. Sankhyayn (PW-3) vide MLC Ext. PE opined that there was nothing to suggest that the accused was unable to perform sexual intercourse. During the course of investigation, the prosecutrix made a supplementary statement claiming that one Pawan Kumar had also committed rape on her, therefore, said Pawan Kumar was also arrayed as an accused in the case. On completion of the investigation, the Officer Incharge Police Station, Talai submitted a charge-sheet against the accused and said Pawan Kumar. On consideration of the charge-sheet, the trial Court directed that Pawan Kumar be tried separately. A charge under Sections 376 and 506 IPC was framed against the accused who pleaded not guilty and claimed to be tried.

(3.) To prove the charge against the accused, prosecution examined 13 witnesses. Statement of the accused under Section 313 Code of Criminal Procedure was recorded wherein he claimed to be innocent and having been falsely implicated in the case at the instance of Mohinder Singh, Lekh Ram, Pritam Singh, Vijay Kumar and Kuldip Singh. The accused led defence evidence and examined Nathu Ram (DW-1).