TARVINDER KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 28-4-2000 passed by the learned Sessions Judge, Solan, whereby the appellant accused (hereafter referred to as the accused) has been convicted under Section 376 IPC and has been sentenced to rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for one month.

(2.) Case of the prosecution, in brief, is that the prosecutrix (PW-6) is the eldest child of Tufani (PW-7) and Champa (PW-8) and, at the relevant time, was aged 10 years. She used to reside with her parents in Jhugi Jhompri Colony, Sector 4, Parwanoo and was studying in a nearby Government School within the territory of State of Haryana. On 4-11-1999 at about 2 P.M., the prosecutrix was returning home from the said school along with her brother and sister. On the way, she stopped for urinating and her brother and sisters went ahead. At that time, accused was sitting on the roadside near a bridge. On noticing the prosecutrix, accused followed her and started talking to her. He took out his shirt and muffled his face with it. Thereafter, he forcibly dragged the prosecutrix into the Jungle where he committed rape on her. When the prosecutrix raised cries, accused immediately gagged her mouth. The accused threatened the prosecutrix not to divulge the occurrence to anyone. Because of the rape, prosecutrix became semi unconscious but somehow or the other, managed to reach her house. She disclosed the occurrence and the identity of the accused to her mother (PW-8) who could place the accused because his daughter was also studying with the prosecutrix in the same school. The prosecutrix was removed to ESI Hospital, Parwanoo. On receipt of the information, ASI, Rattan Kumar (PW-14) went to the said Hospital and recorded the statement of the prosecutrix under Section 154 Cr. P.C. Ex. PW-2/A on the basis of which FIR Ex. PW-2/B was recorded at Police Station, Parwanoo. The prosecutrix was medically examined by Dr. Krishana Nath (PW-11) of ESI Hospital, Parwanoo, who could not carry out the vaginal examination of the prosecutrix because of bleeding. However, she took the blood stained clothes of the prosecutrix Exs. P-i and P-2 in possession, sealed and handed them over to the police for chemical examination. The prosecutrix was referred to District Hospital, Solan for ultra sonography and to the gynae-cologist for further line of treatment. PW-11 issued MLC Ex. PW-11/A about the medical examination of the prosecutrix as was done by her. In District Hospital, Solan, prosecutrix was medically examined by Dr. Kamlesh Sharma (PW-10) who, on such examination, found the hymen of the prosecutrix ruptured with irregular margins with extension of wound in the posterior vaginal wall and lateral vaginal wall. Fresh bleeding was found present and the margins of the wound were irregular. The wound from the posterior vaginal wall extended down to external sphincter. It was a third degree perineal tear. The rectum was bulging out. Two vials of blood of the prosecutrix were taken, sealed and handed over to the police for chemical analysis. PW-8 issued MLR Ex. PW-10/A about the medical examination of the prosecutrix conducted by her. As per her opinion, there was recent penetration with recent sexual intercourse leading to vaginal injury and rupture of hymen and third degree perineal tear. The act of rape was committed within 24 hours preceding the examination of the prosecution by her on 5-11-1999 at 1.45 AM. Opinion Ex. PW-9/A about the skeleton age of the prosecutrix was also obtained, according to which, the skeleton age of the prosecutrix was 8 to 10 years. Her School Leaving Certificate Ex. PW-3/B was also obtained according to which, the date of birth of the prosecutrix is 10-7-1989.

(3.) The accused, after his arrest, was got medically examined. At the time of medical examination of the accused, Dr. Vinod Kapil (PW-12) took the pant Ex. P-i and Nikkar Ex. P-4 in possession and issued MLR Ex. PW-12/A about the medical examination of the accused and opined that there was nothing to suggest that the accused was incapable of performing sexual intercourse. The wearing apparels of the prosecutrix Exs. P-i and P-2, her blood sample and the wearing apparels of the accused Exs. P-3 and P-4 were sent to the chemical analysis to the State Forensic Laboratory, Junga and as per report Ex. PW-14/A of the Assistant Director of the said Laboratory, on Salwar of the prosecutrix and Nikkar and pant of the accused, human blood of B group and human semen were found. On shirt of the prosecutrix, human blood of B group was found. The blood of the prosecutrix was also found of B group. On completion of the investigation, the officer incharge of Police Station, Parwanoo submitted a charge sheet against the accused under Section 376 and 506 IPC. The accused was tried by the learned Sessions Judge, Solan, on a charge under Sections 376 and 506 IPC. To prove the charge against the accused, prosecutrix examined 14 witnesses. The accused was examined under Section 313 Cr. P.C. wherein he denied the prosecution case. However, the accused did not lead any defence evidence.