SUBHASH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) ASSAILING the judgment dated 21.11.2013/29.11.2013, passed by learned Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No. 18 -S/7 of 2011, titled as State of Himachal Pradesh v. Subhash, whereby accused stands convicted of the offence punishable under the provisions of Section 376(2)(f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 20,000/ - and in default thereof to further undergo simple imprisonment for a period of two years, present jail appeal has been preferred by him under the provisions of Section 374 of the Code of Criminal Procedure, 1973.

(2.) IT is the case of prosecution that as a tenant of Ram Lal (DW -1), Rinku (PW -3) was residing at Sanwara, P.S. Dharampur, with his wife Sonu Devi (PW -2) and two children i.e. the prosecutrix, aged eight and son aged six. Rinku was running a dhaba at Sanwara. Accused was also a tenant of Ram Lal and residing in the very same building. Rinku was occupying one room and the adjoining room was occupied by the accused who was working in a dhaba at Dharampur and his wife was employed in a School at Sanawar. On 24.7.2011, prosecutrix and her brother went to the room of the accused for watching television, where accused subjected her to rape. At about 3.00 p.m. when mother of the prosecutrix noticed her taking off her underwear having some dark spots, which smelled of urine, prosecutrix disclosed that by taking off her underwear, accused inserted his finger and after rubbing his penis against her private parts urinated. Sonu Devi narrated the incident to her husband Rinku and police was informed. SI Kshama Dutt (PW -15) went to the spot and recorded statement of Sonu Devi (Ext. PW -2/A) under the provisions of Section 154 Cr.P.C., which led to registration of F.I.R. No. 117 of 2011, dated 25.7.2011 (Ext. PW -12/A) against the accused at Police Station Dharampur, Distt. Solan, H.P., under the provisions of Section 376(2)/511 of the Indian Penal Code. Prosecutrix was got medically examined from Dr. Simmi Sharma (PW -13) who issued MLC (Ext. PW -13/A). The vaginal smear slide, vaginal swab and underwear of the prosecutrix were sealed and sent for chemical analysis. The blood samples for DNA profiling of the prosecutrix as well as the accused were taken by the police. Police also took into possession bed sheet, underwear of the accused and his semen sample. MHC Praveen Kumar (PW -12) kept the samples in safe custody. The samples were sent to the Forensic Science Laboratory, Junga and as per report (Ext. PW -14/A) human semen was found on the bed sheet, underwear of the prosecutrix, underwear of the accused as also vaginal swab and vaginal smear slide. Record pertaining to the age of the prosecutrix was taken by the police. The radiological age of the prosecutrix was found to be below 12 years. Opinion (Ext. PW -1/A) of the Radiologist Dr. J.P. Kaushik (PW -1) was taken on record. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

(3.) IN order to prove its case, in all, prosecution examined as many as sixteen witnesses and statement of the accused under Section 313 Cr.P.C. recorded, in which he took plea of innocence and false implication. Accused also examined one witness in his defence.