STATE OF HIMACHAL PRADESH Vs. VIPAN KUMAR

JUDGEMENT

(1.) Present appeal is filed against the judgment of acquittal passed by learned Sessions Judge-cum-Special Judge Hamirpur in Sessions Trial No. 12 of 2009 titled State of H.P. v. Vipan Kumar.

(2.) Brief facts of the case as alleged by prosecution are that on dated 25.2.2009 at about 2.30 p.m. at village Lohakhar accused had committed sexual intercourse with prosecutrix without her consent. It is alleged by prosecution that on the aforesaid date, time and place accused criminally trespassed into the house of prosecutrix after having made preparation to wrongfully restrain the prosecutrix with a view to commit rape on prosecutrix. It is also alleged by prosecution that on the same date, time and place accused criminally intimidated the prosecutrix to kill her. It is alleged by prosecution that on the same date, time and place accused was not the member of Scheduled Caste or Scheduled Tribe and was member of Rajput caste and was in position to dominate the prosecutrix who belonged to Scheduled Caste and exploited her sexually without her consent. It is alleged by prosecution that at the time of incident the prosecutrix aged 20 years was student of BBA in Vallabh Government College Mandi and prosecutrix was all alone in her house. It is alleged by prosecution that accused came in the house of prosecutrix and when prosecutrix inquired from accused about his presence then accused told that he came in the search of his dog. It is alleged by prosecution that at about 2.30 p.m. when prosecutrix was all alone in the house and was watching the television accused again came and knocked the door and asked the prosecutrix to open the door. It is alleged by prosecution that when prosecutrix declined to open the door thereafter accused 2/3 times pulled the door from outside and thereafter entered into the room of prosecutrix. It is alleged by prosecution that thereafter accused threw the prosecutrix on bed and gagged her mouth with his hands and thereafter removed the salwar and underwear of prosecutrix. It is alleged by prosecution that when prosecutrix tried to cry the accused gagged the mouth of prosecutrix and took the prosecutrix to cowshed which was situated nearby residential room. It is alleged by prosecution that in cowshed the accused removed his pant and underwear and committed forcible sexual intercourse with prosecutrix. It is alleged by prosecution that prosecutrix suffered injuries on her feet, back and towards right side of leg and also on her private parts in the process of rape. It is alleged by prosecution that immediately mother of prosecutrix came and accused immediately fled away and in hurry left his underwear Ext.P7 in cowshed. It is alleged by prosecution that when mother of prosecutrix came and when she saw salwar Ext.P5 and underwear Ext.P6 of prosecutrix inside the residential room she got confused and puzzled and she started crying. It is alleged by prosecution that in the meanwhile PW2 Roshani Devi saw the accused running away from cowshed and when she abused the accused the accused told her that he was not afraid of anybody. It is alleged by prosecution that in the meanwhile prosecutrix came from cowshed to her mother in the courtyard of residential house in weeping stage and narrated the entire incident to her. It is alleged by prosecution that thereafter Roshani Devi telephoned her son-in-law Rajesh Kumar and also her daughter at Hamirpur and also telephoned a member of Mahila Mandal and also collected other villagers in the house. It is alleged by prosecution that thereafter Rajesh Kumar son-in-law of Roshani Devi telephoned Shri Gulab Singh Thakur Dy.S.P. and Mr. Gulab Singh Thakur Dy.S.P. had informed the police of P.S. Sujanpur. It is alleged by prosecution that thereafter SI Anil Verma SHO P.S. Sujanpur proceeded to the spot along with other some police officials and recorded the statement of prosecutrix under Section 154 Cr.P.C. Ext.PW1/A and thereafter FIR Ext.PW13/A was registered. It is alleged by prosecution that thereafter PW16 Gulab Singh Thakur Dy.S.P. went to the spot and took into possession salwar Ext.P5 and underwear Ext.P6 of prosecutrix from room of prosecutrix vide memo Ext.PW1/C in presence of Roma Devi and Karam Chand and sealed them in a parcel with seal "A" and seal impression was took on a piece of cloth. It is alleged by prosecution that underwear of accused Ext.P7, gunny bag Ext.P16 were took into possession from cowshed by SI Anil Verma vide memo Ext.PW1/D. It is alleged by prosecution that Gulab Singh Thakur PW16 took into possession V shape slippers Ext.P8 of accused from the room of prosecutrix vide recovery memo Ext.PW1/E. It is alleged by prosecution that in the meanwhile application Ext.PW4/A was moved to SMO R.H. Hamirpur for medical examination of prosecutrix which was conducted vide MLC Ext.PW4/C by PW4 Dr. Rajneesh Thakur and it was found that prosecutrix was subjected to sexual intercourse. It is alleged by prosecution that medical officer had collected vaginal swab of prosecutrix and sent to FSL Junga and also obtained FSL report Ext.PW4/B according to which human blood and semen was found on vaginal swab of prosecutrix. It is alleged by prosecution that accused was also medically examined by medical officer CHC Sujanpur by PW5 Dr. Rakesh Kumar Sharma who issued MLC Ext.PW5/B and accused was found capable of performing sexual intercourse. It is alleged by prosecution that photographs were also obtained and site plan of house of prosecutrix and cowshed was also prepared by Investigating Officer. It is alleged by prosecution that caste certificate of prosecutrix was obtained and as per caste certificate prosecutrix belonged to SC caste and accused belonged to Rajput caste.

(3.) Accused was charged by learned Sessions Judge Hamirpur on dated 16.5.2009 under Sections 376 (1), 452, 506-II of Indian Penal Code and 3(1) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Accused person did not plead guilty and claimed trial.