BANSARI LAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Assailing the judgment dated 6.4.2015/7.4.2015, passed by learned Special Judge, Kullu, Distt. Kullu, H.P. , in Sessions Trial No. 43 of 2014, titled as State of H.P. vs. Bansari lal, whereby the accused stands convicted of the offences punishable under the provisions of Section 376 (2)(i) of the Indian Penal Code (hereinafter referred to as the IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.10,000/ - and in default thereof to undergo rigorous imprisonment for a period of two months for offence under Section 376 (2)(i) of the IPC; and rigorous imprisonment for a period of 10 years and pay fine of Rs.10,000/ - and in default thereof to undergo rigorous imprisonment for a period of two months for offence under Section 4 of the POCSO Act, he has filed the present appeal under the provisions of Section 374 (2) of the Code of Criminal Procedure, 1973.

(2.) It is the case of the prosecution that Sushma Devi (PW -1) was married to Asha Dutt some time in the year 1996 through whom she gave birth to two daughters Sunita (PW -6) and the prosecutrix (PW -2). Sometime in the year 2006, they separated and the marriage came to be dissolved by divorce when Sushma Devi started residing at Bhunter whereas the daughters continued to reside with their father at village Deori. Accused Bansari Lal, brother of Asha Dutt, who also resides in the very same village had two sons, one of whom used to reside in a different village, with his maternal aunt. On 2.2.2014, one of the sons of the accused namely Chand Parkash took the prosecutrix to his house where both played together. While prosecutrix was sleeping with Chand Parkash in one of the rooms, in the night, accused carried the prosecutrix to his bed and subjected her to forcible sexual intercourse. Such incident came to be repeated even the following day i.e. 3.02.2014. Prosecutrix narrated the incident to her elder sister (PW -6) who informed her father, grand mother and other members of the family. However they instructed her not to talk to anyone and that in future they would take care of the prosecutrix. On 9.02.2014 Sunita (PW -6) telephonically requested her mother to meet her and upon meeting, disclosed the incident to her, where after, the matter came to be reported to the police and F.I.R. No. 11/2014, dated 9.2.2014 (Ext. PW -1/A) came to be registered against the accused at Police Station Banjar (Seraj), Distt. Kullu, H.P. under the provisions of Sections 376 IPC and 4 POCSO Act. Police machinery was swung into action and the prosecutrix immediately got medically examined from Dr. Anu Devi (PW -11) who issued MLC (Ext. PW -11/A). Investigation so conducted by Const. Mamta (PW -7) and SHO Chint Ram (PW -10) revealed that at the time of occurrence of the crime, prosecutrix who was studying in the sixth standard was a minor. During the course of investigation, on the basis of disclosure statement (Ext. PW -7/A) so made by the accused, who stood arrested by the police, incriminating articles in the form of clothes, blanket, bed sheet etc. came to be recovered. Clothes of the prosecutrix were also taken into possession. The incriminating articles were sent to the Regional Forensic Science Laboratory, Mandi, H.P. for chemical analysis and report (Ext. PW -10/F) taken on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

(3.) Accused was charged for having committed offences punishable under the provisions of Section 376 -G IPC and Section 4 POCSO Act , to which he did not plead guilty and claimed trial.