NITIN KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) PRESENT appeal filed against the judgment and sentence passed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushehr camp at Reckong Peo in Sessions Trial No 28 of 2008 titled State vs. Nitin Kumar and another decided on 17th December 2009.

(2.) IT is alleged that on 22nd April 2008 at about 8.20 AM one Ashwani Kumar had informed the police that his wife prosecutrix took some poisonous substance and she was taken to the hospital at Sangla. It is alleged by the prosecution that after incorporating the information in daily dairy the police party headed by SI/SHO Lekh Ram went to hospital where statement of Shri Ashwani Kumar under Section 154 Cr.P.C. was recorded who disclosed in his statement that on dated 21st April 2008 he was with his wife prosecutrix who is joint wife along with his brother Pawan Kumar having three children out of their joint marriage which took place about 9 years back. Complainant informed that prosecutrix had gone in village Sangla to the house of Suresh Kumar to attend social function known as Daroj. It is alleged by the prosecution that when Ashwani Kumar on dated 22nd April 2008 in the morning asked his wife to wake up as children were to be sent to the school and he was to go to his land then prosecutrix started weeping and when he asked about the cause of her weeping she disclosed that she took poisonous medicine. It is alleged by the prosecution that when Ashwani Kumar asked his wife prosecutrix about cause of taking poisonous medicine then prosecutrix disclosed that during night when she was coming back from the house of Suresh Kumar after attending the social function known as Daroj both accused persons have committed forcible rape upon the prosecutrix despite her resistance and raising hue and cry. It is further alleged by the prosecution that thereafter Ashwani Kumar brought his wife to the hospital for her medical treatment and handed over the small container of poisonous medicine to the doctor and also informed the police station. Complainant informed that accused persons have committed rape forcibly with his wife without her consent and thereafter she took poisonous substance in order to save her reputation. Statement of complainant Ashwani Kumar recorded under Section 154 Cr.P.C. was sent to the police station from the hospital and thereafter FIR was registered and it is further alleged by the prosecution that during investigation both accused were arrested who made disclosure statements during the custody of the police and also identified the place of incident of forcible rape. It is also alleged by the prosecution that in pursuance of disclosure statements the place of incident was identified in presence of witnesses and thereafter medical examination of the accused was conducted and medical officer opined that prosecutrix was multiparous. It is further alleged by the prosecution that both the accused were also medically examined and medical officer opined that both accused were capable of sexual intercourse. It is further alleged by the prosecution that human semen was also observed on the clothes of the prosecutrix and accused as per report of the Forensic Science Laboratory. On completion of investigation, challan under Section 376(G) of IPC filed against the accused persons.

(3.) PROSECUTION examined as many as fourteen witnesses in support of its case and accused persons examined Smt. Sumitra Devi as defence witness: -