GOPAL SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS appeal is instituted against the judgment dated 21.12.2009 rendered by the Additional Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No. 18 -N/7 of 2002, whereby the appellant -accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offence punishable under section 376(2)(f) of the Indian Penal Code has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ' 10,000/ - and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of one year. Hence, the present appeal.

(2.) CASE of the prosecution, in a nutshell, is that on 21.8.2002, prosecutrix (PW -3) daughter of PW -1 Kunta Devi, aged about 4 1/2 years, at about 2.30 P.M. was playing outside her house alongwith other children at village Uttamwala. Accused took the prosecutrix to the field on the pretext to bring maize. He committed sexual intercourse with the prosecutrix. Prosecutrix cried. The cries were heard by PW -2 Uma Devi. PW -2 Uma Devi informed PW -1 Kunta Devi, mother of prosecutrix about the same. PW -1 Kunta Devi went to the spot and saw the accused committing sexual assault upon the prosecutrix in the filed. She was laid down on the ground. She lifted the prosecutrix from the lap of the accused and snatched her from the accused. Prosecutrix was naked. She was brought alongwith her clothes to the house. Blood was oozing out from the private parts of the prosecutrix. The Pajami of the prosecutrix was stained with blood. Husband of PW -1 Kunta Devi, who was out of house was called and told about the occurrence. PW -1 Kunta Devi and her husband Babu Ram went to the Police Station, Nahan. They lodged FIR Ext. PW. 1/A. PW -4 Dr. Nirmla Vaish examined the prosecutrix. She issued MLC Ext. PW -4/A. She preserved Pajami Ext. P -1 and Ext. P -2 of the prosecutrix and prepared three slides of the fluid taken from the posterior fornix. She also preserved blood samples of the prosecutrix. All the articles were handed over to the police for chemical examination. The prosecutrix remained admitted in the hospital. She was discharged on 31.8.2002. Accused was medically examined by PW -8 Dr. S.C. Goel. Site plan was prepared. Date of birth certificate Ext. PW -9/A of the prosecutrix was obtained. Statements of the witnesses were recorded. Police investigated the case and the challan was put up in the court after completing all the codal formalities.

(3.) ACCUSED moved an application under Section 330 of the Code of Criminal Procedure. The Court vide order dated 27.3.2004, ordered the detention of the accused in Psychiatric Department, I.G.M.C., Shimla. Reports of the Himachal Hospital of Mental Health and Rehabilitation, Shimla were received from time to time qua the mental health of the accused. As per report dated 26.9.2008, accused was opined to be capable of making his defence in the Court. He did not have features of active mental disorder. Senior Medical Superintendent vide letter dated 17.12.2008 declared that patient was fit to be discharged from the hospital for facing the trial. On 2.1.2009, accused was found to be fit for trial. Charge under Section 376(2)(f) of the Indian Penal Code was framed. He pleaded not guilty.