RAMESH SHARMA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE challenge herein is to the judgment dated 22.12.2010, passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No. 10 -S/7 of 2009, convicting thereby the appellant hereinafter referred to as the accused, under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and to pay Rs. 20,000/ - as fine. The challenge to the impugned judgment is on the grounds, inter alia, that there is no iota of evidence to show that the prosecutrix was subjected to sexual intercourse by the accused. Again, no legal and acceptable evidence is stated to be on record, suggesting that the prosecutrix was minor below 16 years of age. The medical evidence is not conclusive so as to prove the commission of sexual intercourse with the prosecutrix, as nothing is there to suggest that there were injuries on the private part of the prosecutrix. All the witnesses were interested in the success of the case set up by the prosecution and such evidence should have not been relied upon against the accused. All the incriminating circumstances, appearing against the accused in the prosecution evidence, were not put to him in his statement recorded under Section 313 Cr.P.C. Therefore, such incriminating circumstances should have not been used against him.

(2.) NOW , if coming to the factual matrix, on 20.2.2009 around 10 a.m., when the prosecutrix (name withheld) was spreading cow -dung in the fields with her cousin PW -13 Geeta, a deaf and dumb girl, the accused came there in a vehicle bearing registration No. HP -01A -0765 and parked the same on road side. He signaled the prosecutrix to come down to the road. She came to the road and accused made her sit on the rear seat of the said vehicle. He drove the vehicle to by -pass road and stopped it near a curve on Kutcha portion of the road. He came to the rear seat, opened the string of her Salwar and subjected her to sexual intercourse against her will and without her consent. The accused asked the prosecutrix not to divulge anything to anyone and drove the vehicle towards Theog side. In the meanwhile, her mother PW -7 Smt Sarla came to the fields with her nephew PW -8 Sunil and when noticed that the prosecutrix was not there, asked Sunil to go to roadside and' enquire about her. PW -8 Sunil came back and informed PW -7 Smt. Sarla that the prosecutrix had gone towards Theog side with the accused in a vehicle bearing registration No. HP -01A -0765. On this, PW -7 Smt. Sarla informed her Devar (younger brother of her husband) Prem Singh through her cell phone and herself left for Theog in a bus alongwith her Devrani (wife of younger brother of her husband) Smt. Pushpa. She also informed her father -in -law PW -19 Devi Dass about the incident. The said witness tried to stop the vehicle at Premghat Chowk, but the accused did not stop it and drove the same towards Shimla side. Ultimately, the accused had to stop the vehicle near Bus stand, Theog, because of traffic jam. The vehicle was intercepted there by PW -20 Mohan Dogra, a cousin of the father of the prosecutrix. In the meanwhile, PW -19 Devi Dass also came there, guarded the vehicle and took the custody of the prosecutrix. At that very time, PW -7 Sarla, the complainant accompanied by her Devrani Pushpa also reached there. On inquiry by PW -7 Smt. Sarla, the prosecutrix narrated the occurrence to her. Thereafter they all came to Police Station, Theog and on the basis of report lodged by PW -7 Smt. Sarla, the mother of the prosecutrix, FIR Ext. PW7/A under Sections 363 and 376 IPC came to be registered against the accused at 2 p.m.

(3.) THE accused was interrogated. In the meanwhile, lady constable Meena brought MLC of the prosecutrix. The statement of the prosecutrix was also recorded and on finding a case having been made out under Sections 363 and 376 IPC against the accused, he was arrested and got medically examined. The Investigating Officer thereafter inspected the spot at village Khol Gali and prepared the map of the place from where the prosecutrix boarded the vehicle in question. He also prepared spot map Ext. PW23/C of the place known as Maut Mor, where the prosecutrix was subjected to sexual intercourse.