STATE OF H P Vs. MADAN MOHAN

JUDGEMENT

(1.) Ac cused Madan Mohan was tried for an offence under Section 376 of the Indian Penal Code and having been convicted, was sentenced to undergo 3 years' rigorous imprisonment and to pay a fine of Rs. 3,000.00 by Sessions Judge Kangra Division at Dharamshala on 29-9-1992. In default of payment of fine, the accused had been directed to undergo one year rigorous imprisonment. In case the fine is recovered from the accused, Rs. 2000.00 is directed to be paid to the prosecutrix.

(2.) The case of the prosecution briefly stated is as follows : - On 28/09/1991 at about 5 or 5.30 p.m. prosecutrix Kumari Nisha aged about 6 1/2 to 7 years had gone from her house for playing some game in the village. Her father Bishan Dass (PW-2) came to his house in the evening and inquired about the whereabouts of Kumari Nisha from his wife. The wife told him that the prosecutrix had gone for playing outside, when she did not return to her house a search was carried out to find out her whereabouts. PW Bishan Dass inquired from Puran Chand (PW 5) whether his daughter had come to his house. Puran Chand replied in negative. PW Bishan Dass along with his son, Sanjay went to the house of one Roop Lal the maternal uncle of the prosecutrix in her search, but the prosecutrix was also not found there. Thereafter, they went towards a place known as 'Sudhir'. On the way PW Puran Chand gave a call to PW Bishan Dass asking the latter about the where abouts of the prosecutrix. PW Puran Chand also joined Bishan Dass in the search of the prosecutrix. Thereafter, they all went to the house of another Bishan Dass, Gaddi where Subhash Kumar (PW-6) son of Bishan Dass Gaddi informed the father of the prosecutrix that the accused had also taken his sister and he had rescued her from his (accused's) clutches. Immediately, the father of the prosecutrix, in the company of PW Puran Chand and his son Sanjay went to the house of the accused. They noticed that the light of the room of the accused was on but the door was closed. The moment father of the prosecutrix gave a call to the accused, he switched off the light. The father of the prosecutrix opened the door of accused by pushing. He entered the room and switched on the light and found that Kumari Nisha was lying naked on the ground and the ac cused was wearing his underwear. There was profused bleeding from the private part of the prosecutrix. The father immediately took up his daughter in his arms and came out from the room and shouted for the help of the villagers. The prosecutrix was immediately taken to the Hospital where she was admitted. Thereafter Bishan Dass straightway went to the Police Station Dharamshala the same day to lodge the report at about 10 p.m. A case under Section 376, I.P.C. came to be registered vide F.I.R. (Ext. PW-2/A) against the accused on the basis of the report and investigation followed. Inspector Durga Datt (PW-10) took up the investigation. He went to the spot and prepared the spot map (Ex. PW 10/A). He, after seizing certain articles namely 'Chappal' (Ex. P1), Pajami' (Ex. P2), Frock (Ex. P- 3), one bed sheet (Ex. P4) and one quit (Ex. P5) took them into possession and duly sealed them. The accused was arrested during the intervening night of 28th and 29th of September, 1991. The accused was interrogated and he made a disclosure statement (Ex. PW-2/D) and got recovered one 'Thelu' (Ex. P6) (small cotton bag). The articles were stained with blood and some whitish material. He sent the victim girl and the accused simultaneously for medi cal examination.

(3.) Doctors Mrs. Shashi Mahajan (PW-4) medi cally examined Kumari Nisha on 28-9-1991 at 10.40 p.m. According to the finding of the Doctor the child was having no clothes on her person, her breasts were not developed and Axillary and pubic hair were not present. The doctor found two following injuries on her person : - (1) There were two-three contusions on the left leg in its antoromedial aspect, red in colour. Size varying from 1/2" x 1/2", 1/2" x 1/4" and 1/2" x 1". (2) There was redness on the anterior aspect of the base of neck.