NARESH KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) The instant appeal is directed against the judgment of the learned Addl. Sessions Judge, Mandi, District Mandi, Himachal Pradesh, rendered on 28.03.2011 in Sessions trial No.11/2010 whereby, the learned trial Court convicted the accused/appellant for his having allegedly committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code (hereinafter referred to as "IPC") and sentenced him as under:-

(2.) The facts relevant to decide the instant case are that the prosecutrix was studying in Government Senior Secondary School, Sundernagar in class 8th. She had gone to school on 3.2.2010 but did not return. Efforts were made by her parents to search her but in vain. She told her mother telephonically that she had left and thereafter disconnected the phone. The parents of the prosecutrix came to know that accused Niju was also missing and hence they suspected that the accused was responsible for the missing of their daughter. The matter was reported to the police and FIR Ex.PA was registered. Investigation was conducted by ASI Chhota Ram, who recorded the statements of the witnesses as per their version. The accused and prosecutrix were brought to police station by the parents of the accused on 11.2.2010. An application Ex.PQ was filed before the medical officer for conducting the medical examination of the prosecutrix. PW-7 Dr. Rafia Bano conducted her medical examination and found that there was sufficient evidence to suggest that she was subjected to sexual intercourse. She issued MLC. The accused was also subjected to medical examination and as per the opinion of the doctor concerned he was found capable of performing sexual intercourse. During the course of the investigation, the Investigating Officer on an application having been moved at his instance, obtained the date of birth certificate of the prosecutrix. As per the birth certificate procured by the Investigating Officer from the school of the prosecutrix, the date of birth of the prosecutrix was recorded to be 19.08.1994. Cowshed of Prem Chand was shown by the prosecutrix. Site plan Ex.PK was prepared. Bed sheet lying on the double bed was seized vide separate seizure memo. It was sealed in a parcel with eight impressions of seal 'R'. Samples of seal were taken separately on a piece of cloth. The Investigating Officer, has further taken into possession for Municipal Committee date of birth certificate of the prosecutrix showing her date of birth to be 19.8.1994. The case property was deposited with HC Santosh Kumar, who deposited the same in Malkhana and made an entry in the register of malkhana. The case property was sent to FSL Junga on 15.11.2010 through HHC Baldev vide R.C. No. 190/09-10, who deposited the same there and handed over the receipt to MHC on his return. As per the opinion of the FSL, blood was not detected on the pajami of prosecutrix but human semen was detected on it. However, human blood and semen were not detected on the shirt, sweater, vaginal smear slides, pubic hair, vaginal swab of the prosecutrix and under wear and pubic hair of Naresh Kumar and on the bed sheet. It was found on the basis of the investigation that the accused had kidnapped and raped the prosecutrix, who was minor on the date of incident.

(3.) On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Sec. 173 of the Code of Criminal Procedure was prepared and filed in the Court.