RAJESH KUMAR Vs. STATE OF H P

JUDGEMENT

(1.) The appellant has challenged his conviction under Section 376 of the Indian Penal Code (hereinafter referred to as IPC) whereby he has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo rigorous imprisonment for one year.

(2.) The prosecution case, in brief, is that the prosecutrix who is resident of Giltari, Tehsil Jubbal, District Shimla was born on 10.11.1984 and a student of 10th class in the year 2001. On 7.5.2011 marriage of the daughter of one Kitab Singh was being solemnized in the village. The accused who is the nephew of Kitab Singh (not examined as a witness) was also present in the marriage. The accused was familiar with the prosecutrix being in her near relation. On 9.5.2001, when the marriage was in progress, the accused called the prosecutrix and took her to the orchard of Partap Singh, where he forcibly removed her clothes and committed rape. The accused then persuaded her not to disclose this fact to any person and promised to marry her. On 11.5.2001, when the prosecutrix was proceeding to the house of her maternal uncle Harinder PW5, on way at Shaloli, the prosecutrix came across the accused and again induced her to accompany him to the orchard, where they talked for some time and accused, despite resistance from the prosecutrix again committed rape. He again promised to marry her. When the prosecutrix told the accused that she could not visit her maternal uncle in the condition in which she was and also could not go to her parents, the accused is reported to have told her that she should commit suicide by taking poison. She accompanied the accused to the room situated in the orchard where she found a bottle of matacid pesticide which she consumed and after some time she started vomiting. On being confronted with this situation, the accused carried her to his house at Utina and called her maternal uncle Harinder Singh PW5 and told him that the prosecutrix was having some pain in her abdomen. Then the prosecutrix was taken to Primary Health Centre, Tikochi in Uttrakhand from where he was referred to Civil Hospital, Rohru (Himachal) for treatment. On the statement of the prosecutrix under Section 154 Cr.P.C. Ext.PA, PW9 Shri Shyam Lal SHO Jubbal visited Civil Hospital, Rohru and registered FIR for offence under Section 376 IPC against the accused vide FIR Ext.PW8/A. The prosecutrix was then examined by PW10 Dr. Satish Kumar who issued MLC Ext.PW10/A. From the perusal of Ext.PW10/A, it is found that on 12.5.2001 at 3 AM the prosecutrix was brought to the hospital with the alleged history of having consumed the poison, but no external or internal injury was found. The prosecutrix has signed in the form of consent for medical examination. Thereafter vide MLC Ext.PW10/C she was examined by PW10 Dr. Satish Kumar on 14.5.2001 at 10 AM (I find that date 14th has been written over 13th) when she stated that on 9.11.2001 around 12 PM she was attending the marriage of her cousin sister. Accused called her by saying that he had to discuss something. She went with him to nearby orchard where he forcibly caught her, laid down her, gagged her mouth and committed rape on her. She was raped twice on that day. She felt pain and bleeding from her vagina. PW10 Dr. Satish Kumar then examined her and records that:

(3.) Learned counsel appearing for the appellant urges that the trial Court is in grave error in convicting the appellant on the sole statement of the prosecutrix. Learned counsel submits that the prosecution case, as proved on record, shows that the prosecutrix was taken to Primary Health Centre, Tikochi in Uttrakhand where after she was referred to the Civil Hospital at Rohru. In her statement Ext.PA, she states that she was acquainted with the accused. On 9.5.2001 the wedding of the daughter of Kitab Singh was being performed and the accused, who belongs to village Kiranu (Utina), District Dehradun, had also come to attend the marriage. The accused was acquainted with her as they were in near relations. On 9.5.2001 when the wedding ceremony was in progress, he asked the prosecutrix to accompany him. He took her to an orchard in village Gilhari where he forcibly broke the string of her salwar and despite her protest, committed inter course with her by stating that he would marry her. On 11.5.2001 when she was going to the house of her maternal uncle Shri Harender Singh PW5, then on way near village Shiloli the accused met her and again enticed her to his orchard. They stayed there for sometime and talked to each other. Thereafter, he forcibly had sexual intercourse with her despite her protest. He stated that he would get married to her very soon. At this, she told him that now she could not visit either her maternal uncle or her parents and in these circumstances, she had no place to go. On this, the accused told him that she should consume poison. She then went to the house of the accused which is in the orchard itself, where she found metacide (a pesticide which is sprayed on apple trees) and consumed it. She then started vomiting; the accused picked her up and took her to his house at Utina. Thereafter the accused called her maternal uncle and told him that she was suffering from pain in her stomach. She was then taken for treatment to the hospital.