STATE OF HIMACHAL PRADESH Vs. KAMAL SWARUP

JUDGEMENT

(1.) THE instant appeal is directed by the State of H.P. against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P. rendered in Sessions Trial No. 9 of 2001, whereby, the learned trial Court acquitted the accused/respondent of the charge of his having allegedly committed an offence punishable under Section 376 of the IPC.

(2.) BRIEFY stated the facts of the prosecution case are that on 27.7.1999, the prosecutrix accompanied by her brother -in -law Bhagat Singh lodged FIR, Ex. PW3/A at Police Station, Rampur that she was youngest of her parents amongst two brothers and three sisters and was resident of Deothi. The prosecutrix could not clear her compartment in matriculation examination held in the year 1996 and left the school. On 18.6.1998 in the morning, the prosecutrix went to the fields to bring grass. While she was cutting grass, the accused came to the field and caught hold of the prosecutrix and fell her on the ground. The accused broke the string of her salwar and committed rape on the person of the prosecutrix. The prosecutrix attempted to cry and the accused gagged her mouth. The accused threatened to do away with the life of the prosecutrix, if she disclosed the incident. The accused stated to her not to disclose the incident and assured to marry her. The prosecutrix told the accused that she was pregnant from his loins on which the accused told her to continue with the pregnancy. On 12.7.1999, when the prosecutrix accompanied by her mother and brother Sohan Lal went to the house of the accused, his parents and sister Kiran abused them and they returned to the house. The accused has committed forcible sexual intercourse with the prosecutrix on the pretext of performing marriage with her and the accused has refused to marry her. The prosecutrix was got medically examined from doctor Rajender Bisht. As per the opinion of the doctor the prosecutrix had 34 to 36 weeks of pregnancy (height of uterus) foetal part palpable. Foetal heart sound present. Labia and nigra present. The prosecutrix produced salwar which she was wearing on the date of incident and broken string of salwar on which knot was tied to join the two eds to the police and the police sealed the Salwar and string in two parcels and took the same in possession per memo Ex. P.W. 1/A signed by the prosecutrix, Bhagat Singh and Daulat Ram. The salwar was sent to FSL and the Assistant Director, FSL per report Ex. P.W. 14/A found that there was blood on the salwar and there was no semen. The birth certificate of the prosecutrix Ex. PW7/A wherein the date of birth of the prosecutrix is recorded to be 1.6.1979 was also taken into possession from the Registrar, Births and Death, Gram Panchayat, Deothi per memo Ex. PW7/B signed by Sh. Krishan Lal HHC and the Registrar. The school certificate comprised in Ex. P.W. 12/E of middle examination of the prosecutrix recording her date of birth to be 3.12.1978 was also taken into possession. The date of birth of the prosecutrix as per the father of the prosecutrix was 9.11.1982 and the prosecutrix was aged 16 1/2 years at the time of the alleged occurrence. The Dental Surgeon after dental examination of the prosecutrix opined the age of the prosecutrix to be between 16 -17 years. The prosecutrix was also examined by the Radiologist for determination of age. The Radiologist after radiological examination opined that the age of the prosecutrix was between 17 to 20 years. The prosecutrix gave birth to a male child on 11.8.1999. The blood sample of the accused, the prosecutrix and newly born baby was taken and the blood group of the accused, prosecutrix and newly born baby was found B+ and the doctor opined that Kamal Swarup may be possible father of baby of Roshani Devi. The police took up the case for DNA examination with CFSL, Kolkata on direction of the Hon'ble High Court of Himachal Pradesh in September, 2000. The prosecutrix consented to provide her blood sample and that of the child for DNA examination to the police per memo Ex. P.W. 13/A, however, the accused refused to provide his blood sample per memo Ex. PW8/A. The prosecutrix also gave her consent for taking of blood before the Executive Magistrate and the accused made a statement refusing to provide blood sample before the Executive Magistrate per consent memo Ex. PW6/A. Site plan was prepared. The accused had committed sexual intercourse with the prosecutrix under the promise to marry her and after the pregnancy of the prosecutrix assured to marry her and continued committing sexual intercourse with her. The parents and brother of the accused accompanied by the prosecutrix went to the house of the accused to leave the prosecutrix at his house on which the family members of the accused abused her as the prosecutrix belong to scheduled caste and the accused was Brahmin and for this reason the accused did not want to marry her.

(3.) THE accused was charged by the learned trial Court for his having committed an offence punishable under Section 376 of the IPC. In proof of the prosecution case, the prosecution examined 18 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed false implication. In defence, he examined one witness.