AJAY KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Shri Ajay Kumar (along with Shri Rajesh Kumar, a co-accused. Who has been acquitted), was tried, convicted and punished to seven years rigorous imprisonment and to pay a fine of Rs. 15,000.00 (Rupees Fifteen Thousands) for the commission of the offence under S. 376 of the IPC. In default of payment of fine, he has also been directed to suffer rigorous imprisonment for three years. In case of recovery of fine, the same has been ordered to be paid to the prosecutrix as compensation vide impugned judgment passed by the learned Sessions Judge, Shimla on 23-3-1994 in Sessions Trial No. 17-S/7 of 1993/89.

(2.) The prosecution story as unfolded by the prosecution may now be stated broadly. PW-6, Kanya Kumari, aged 15 years hails from village Todsa located at a distance of 16 Kms. from Police Station, Rohru. On 7-8-1989 at 8-00 a.m. she boarded a bus for Rohru and reached there at 9-00 a.m. in order to purchase household articles i.e. 'Gur' and oil. After having kept the Canny at the sale depot, she went to the shop of the accused, Ajay Kumar, which is run under the name and style of "Ajay General Store", Rohru. She demanded 9 Kgs. of 'Gur' for animals and paid Rs. 50.00 as its price to the accused. It is alleged that accused Ajay Kumar forcibly took the prosecutrix inside a room which was being used as a godown for keeping his articles. The further case is that the accused called his co-accused, Rajesh Kumar (since acquitted) and asked him to close the door of the store interlinked with the shop. Thereafter, the accused, Ajay Kumar directed the prosecutrix to lay on a Nutri bag lying in the store. Later he indulged in sex against her will and consent, consequent to which blood started oozing out from her private parts. The accused is stated to have cleaned his male organ with the paper and asked the prosecutrix not to disclose this fact to anyone. Subsequently, the door was got opened by the accused Ajay Kumar through his co-accused and the prosecutrix left the place for bus stand, where PW, Satya Dev, a co-villager of the prosecutrix met her. On seeing him, she started weeping whereupon the latter asked him as to what had happened to her. Consequently she narrated the entire incident naming the accused to have forcibly committed rape on her without her consent and her will. P.W. 2 took the prosecutrix Kanya Kumari (PW-6) to the police station, where she reported the incident on the basis of which First Information Report No. 134 of 1989 dated 7-8-1989 was recorded at 11-40 a.m.

(3.) The Investigating Officer, Inspector Roop Lal (PW-7) on receiving the information, alongwith other police constables, visited the spot, prepared the site plan, took into possession the Nutri bag after emptying the same as also the papers stained with blood and empty 'Gur' bag after observing code formalities. He also arrested the accused on the same date. Apart from the above, he got both the accused as also the prosecutrix medically examined on the same date and obtained their respective medical certificates from the concerned Medical Experts. He also took into possession the wearing clothes, namely, T-Shirt, underwear of the accused as also the 'Salwar' worne by the prosecutrix at the material time and sent these articles to the Chemical Examiner for seeking opinion with respect to the blood stains found to be appearing upon them after duly taking into possession the said articles in accordance with the rules. Thus, both the accused were ultimately prosecuted on completion of the investigation for the commission of the offence under S. 376 read with S. 109 of the IPC. On consideration of the material collected by the police against both the accused, a charge was framed against the appellant for the commission of the offence under S. 376, IPC, whereas his co-accused was charge-sheeted for the commission of the offence under S. 376 read with S. 109 of the IPC.