NATHO RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) This appeal is directed against the judgment of Sessions Judge, Chamba, in Sessions Case No. 3 of 1994, dated 18.7.1994, whereby the accused has been convicted for an offence under Sec. 376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years and to pay a fine of Rs. 3000/ -, in default of payment of fine, to undergo further rigorous imprisonment for one year. Fine, on recovery, has been directed to be paid to the prosecutrix.

(2.) The prosecution case is that Smt. Hari used to live with Natho Ram accused for the past 8 -1/2 years alongwith two -daughters - Pinki (16) (hereinafter prosecutrix) and Anju (11) - from her previous husband. The accused was providing food and clothing to these daughters as if they were his own daughters. On 13.9.1993, they were sleeping in the same room on the floor. The accused asked Smt. Hari to sleep at some distance from him since he was feeling warmth from her body and she being also a patient of tuberculosis and was having some fever. Accordingly, Smt. Hari shifted to the other side and slept. After an hour or so, she heard murmuring. She switched on the light and found that the accused was naked. He had removed his Pyjama and underwear. Shalwar of Pinki was also removed and the accused was lying over her and was performing sexual intercourse with her daughter. She pulled him and separated him from Pinki. The accused threw his underwear and ran away after taking his Pyjama.

(3.) The prosecutrix told Smt. Hari that the accused had been committing sexual intercourse with her for the past 8/9 months on 4/5 occasions by threatening her that in case she told this fact to anyone, she would be killed as he knew Jadu -tona and would destroy her with it. The accused used to earn his livelihood by working as Chela. Smt. Hari made the prosecutrix to wear the Shalwar and reported the matter to the Police after 2/3 days. Report (Ex. PA) was written by Rai Singh (P.W. 13), Inspector/SHO, Police Station, Sadar. It was thumb marked by Smt. Hari after admitting the contents as correct. The prosecutrix was subjected to medical examination by Dr. Brij Bala Sharma (PW -6), who reported that the prosecutrix was habitual of sexual intercourse. Medico legal certificate, Ex. PH, was issued. The prosecutrix was also referred to Radiologist Dr. V.K. Pathak (P.W. 12) for opinion of age. Accordingly, she was examined on 20.9.1993. According to the Radiologist, the prosecutrix was between 15 to 17 years and gave his report (Ex. P.W. 12/A). The skiagrams are Ex. P.W. 12/B to Ex. P.W. 12/C.