TILAK RAJ Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS appeal takes exception to the judgment of the Additional Sessions Judge, Mandi, dated 16/23.9.2011, convicting the appellant for offences punishable under Section 363, 366 and 376 of IPC and sentencing him to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs. 10,000/- and in default, to further undergo simple imprisonment for six months for the commission of offence punishable under Section 376 of the IPC. He has been further sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine of Rs.10,000/- and in default, to further undergo simple imprisonment for a period of 6 months for the commission of offence punishable under Section 366 of the IPC. Further, as offence punishable under Section 363 IPC being a minor offence, the trial Court opined that it would merge in the offence punishable under Section 366 of IPC and, thus, no separate sentence was ordered for that offence. The trial Court further ordered that both the substantive sentences of imprisonment shall run concurrently; and out of fine realized, a . sum of Rs. 15,000/- be awarded to the victim as compensation. The trial Court also provided for period of detention undergone by the appellant as set off in terms of Section 428 of Cr.P.C. Consequential order regarding return of property is also passed by the trial Court. Although, the appellant had applied for suspension of sentence and grant of bail, this Court while admitting the appeal challenging the aforesaid decision of the trial Court, disposed of the Cr.M.P. No. 831 of 2011 as not pressed, with liberty to the appellant to make fresh application for interim relief. The appeal is now posted for hearing.

(2.) THE prosecution case, in brief, is that the prosecutrix (name being withheld to protect her identity) was studying in class 10th in the year 2010. At the relevant time, she was around 15 years old. She had gone to her school on 18.2.2010 as usual, but did not return back home. She could not be found inspite of enquiries made by her parents. The FIR was registered on 20.2.2010 at 19.30 hours against the appellant only for offences punishable under Sections 363 & 366 IPC. On the basis of the FIR, investigation was conducted by Inspector Sureshtha Thakur, PW-11 who found the prosecutrix from the residence of the appellant- accused on 21.2.2010. Her custody was then handed over to her father. On the basis of revelations made by the prosecutrix, investigation was conducted and eventually charge-sheet came to be filed against the appellant for offences punishable under Sections 363, 366 and additionally 376 of IPC. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution examined 12 witnesses to prove its case. The . appellant-accused also examined defence witness DW-1 Chaman, s/o Tule Ram. On analyzing the ocular and other evidence on record, the trial Court found the appellant guilty of the alleged offences.

(3.) HAVING said this, the trial Court then proceeded to examine the defence version that the prosecutrix had visited the house of the accused as she had missed the bus after attending the Shivratri fair. The trial Court was of the view that the said explanation was unacceptable, inasmuch as a normal reaction of the accused and his family members, who were also residing in the same house at the relevant time, as is the case made out by the accused, would have been to intimate the parents of the prosecutrix about the visit of the prosecutrix to their home. This was not done notwithstanding that the father of the prosecutrix was known to them being their family-priest (Kul Purohit). Further, it was not even suggested to the father of the prosecutrix that information was given to him by the accused or his family members about the arrival of the prosecutrix in their home.