STATE OF HIMACHAL PRADESH Vs. OM PRAKASH

JUDGEMENT

(1.) This appeal by the State of HImachal Pradesh is directed against the judgment of learned Addl. Sessions Judge, Fast Track Court, Shimla dated 10-3-2004 in Sessions Trial No. 6-S/7 of 2003/2001, acquitting the respondents herein of the charges framed against them under Sections 376 and 506 read with Section 34 of the Indian Penal Code (for short I.P.C.)

(2.) The relevant facts necessary for disposal of this appeal are as under : PW-14 prosecutrix (name with held by us) is the daughter of Devinder Kumar resident of village Goloo, Tehsil and District, Shimla. During the relevant time, she was studying in 7th class and was above thirteen years of age in the year 1999. She was staying in the house of her maternal uncle PW-7 Binder Kumar at village Badya, Police Station, Dhalli, Shimla in the year 1999. The case of the prosecution was that on 31-1999 at about 5 p.m. PW-7 asked the prosecutrix to drive back the cattle from nearby fields. When the prosecutrix reached a link road at Dhalli, a private bus red in colour came being driven by the driver In which one more person was sitting. The bus driver stopped the bus and the second person came down from the bus. He caught hold the prosecutrix from her arm. The prosecutrix was forcibly dragged inside the bus. The driver took the bus towards 'Churathnala' where it was stopped. The second person sitting In the bus asked the prosecutrix to come out of the bus on the plea that she was just like his 'Bhanjee' (niece) and her 'Mamma' (maternal uncle) belongs to their village. The prosecutrix was taken to nearby jungle where the said person started kissing her. The prosecutrix tried to raise alarm but her mouth was gagged. That person opened waist ring of her Salwar and committed forcible sexual intercourse upon her. It was alleged that the rapist had threatened the prosecutrix with dire consequences if she dared to disclose the occurrence to anyone. When the prosecutrix was coming to her Mamma's house, one woman and one man met her who inquired from her as to why she was weeping, she told them that she was the maternal grand daughter of Ratti Ram. Both the said persons took her to the house of her Mamma. On asking by PW-7, in the presence of PW-12 and PW-13 about her late coming to home, she narrated the entire incident to him. At that time, she told that although she did not know the names of the culprits but she could identify them. PW-7 telephonically informed Devinder Kumar father of the prosecutrix about the occurrence. PW-7 along with one Surya Kant Negl took the prosecutrix to lodge a report in the Police Station, but on the way, PW-15 S. I. Prem Chand met them. PW-7 narrated the entire incident to PW-15 on the way. PW-15 recorded the statement (Ext. PW-4/A) of the prosecutrix under Section 154, Cr.P.C. The said statement was sent to the Police Station for lodging the formal First Information Report. PW-4 Slri Ram who was posted as Station House Officer in Police Station, Dhalll at the relevant time recorded F. I. R. (Ext. PW-4/B). PW-15 vide application (Ext. PW-3/A) sent the prosecutrix to Indira Gandhi Medical College, Shimla for medical examination In the company of a lady constable. PW-3 Dr. Ramesh Chand, Medical Officer referred the prosecutrix for medical examination by a Gynecologist.

(3.) On 4-1-1999 at about 7 a.m. PW-1 Dr. Kushla Pathania, Medical Officer, Kamla Nehru Hospital, Shimla, medically examined the prosecutrix. On the same day, PW-2 Dr. Jatinder Jhingta, Registrar Radiology posted in Indira Gandhi Medical College, Shimla on the basis of radiological determination opined vide report (Ext. PW-2/B) that the age of the prosecutrix was below 14'/a years. PW-15 inspected the spot on 4-1-1999 and prepared spot map (Ext. PW-15/A). He recorded the statements of PW-7, PW-11 Karam Chand, PW-12 and PW-14. Om Parkash-respondent No. 1 herein also belongs to the village of PW-7. On 4-1-1999 when he was si-en coming home, the prosecutrix identified him to be the culprit and accordingly he was arrested by PW-15. PW15 took into possession pant (Ext. P-1) shirt (Ext. P-2), underwear (Ext. P-3) and under waist (Ext. P-4) from Om Parkash-Respon- dent. He obtained the birth certificate of the prosecutrix from PW-10, Surinder Singh Secretary, Gram Panchayat, Chari. Salwar (Ext. P-5), Shirt (Ext. P-6) and Sweater (Ext. P-7) belonging to the prosecutrix and recovered cloths of Om Parkash-respondent were sent to Chemical Examiner Forensic Science Laboratory, Junga. PW-8 Sub-Inspector Jagdish Chand partly inspected the case. He recorded the statements of PW-6 Constable Suresh Kumar and PW-5 Head Constable Suresh Kumar and arrested Nokhi Ram-respondent No. 2 on 26-4-1999. On completion of the investigation and receipt of the report of the Chemical Examiner (Ext. PW-9/B), PW-4 laid the chargesheet against the respondents in the Court.