NARESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS is an appeal filed by the appellant against the judgment of the Court of learned Additional Sessions Judge, Fast Track Court, Shimla, dated 30th August, 2006, vide which the appellant was held guilty under Sections 342 and 376 I.P.C. and was sentenced as under:

(2.) BRIEFLY stated the facts of the case are that a report was lodged with the police on 12.5.2004 at about 12.10 p.m. by one X (name not mentioned) that she is living with her parents near Sankat Mochan and her father is serving at Shimla. The prosecutrix alleged she was a student of 10th class studying at Lakkar Bazar, Shimla and on the night intervening 28/ 29.4.2004, she had gone to the marriage of sister of her friend where one boy met her about whom she learnt that he was bua's son of her friend. The said boy named Naresh took her phone numbers from his cousin and he started giving phone calls to her and she as well as her elder sister told the said Naresh Kumar not to give the phone calls. He again gave a call on 29.4.2004 asking the prosecutrix to, come to Scandal Point, Shimla but she did not go there and thereafter 2 3 times, he gave calls which were heard by her as well as by her sister and again on 10.5.2004, he gave a call to her and asked her to meet him at Mall Road, Shimla, at 3.00 p.m., after she is free from the school. On 11.5.2004, she was roaming at Mall Road, Shimla and she saw Naresh accused there but she did not talk to him. In the evening, she was going towards Bus Stand and she slipped on the road and suffered some injury and Naresh Kumar treated her with bandage and also offered her to leave her at her place. He took her to his uncle's quarter on the pretext of taking some articles from there but after reaching the quarter, he bolted the door and told the prosecutrix that she should only go in the morning. He also asked her to give a call to her parents that she will come in the morning and was staying with her friend, but she did not give a call and he asked Naresh Kumar to let her go but he did not allow her. She did not take meals in the evening but these were taken by Naresh Kumar and he slept thereafter in a separate bed. During the night at about 11/12, Naresh Kumar started committing indecent behaviour with her and she got up and knocked the door but nobody heard her voice. She wept and cried and thereafter lay in a separate bed and the accused entered her bed and he forcibly removed her salwar and committed sexual intercourse with her against her will. She kept on crying and thereafter the accused slept and in the morning she got up and came to Bus Stand, Shimla where her mother met her and she came with her mother to lodge the report.

(3.) THE submissions made by the learned Counsel for the appellant were that the age of the prosecutrix was 16 years, 1 month and 9 days on the day of occurrence and since the prosecutrix had gone to the uncle's quarter if the accused out of her own accord, she was a consenting party to the sexual intercourse. It was also submitted that no rape was committed by the appellant and if sexual intercourse was committed, it was with the express or implied consent of the prosecutrix since she was known to the appellant with whom she had been having talks on telephone. It was submitted that the prosecutrix had stated that the coitus was committed twice but the hymen was not reptured and there was no semen or sperms on the clothes of the prosecutrix and the blood may be due to menstruation. In regard to the semen on the undergarments of the accused, it was submitted that the age of the semen was not determined and it could be a natural discharge also. It was also submitted that it looks unnatural that the accused was having a bandage with him and he applied it upon the person of prosecutrix when she had a fall. It was submitted that the medical evidence does not corroborate the testimony of the prosecutrix and as such the prosecution has miserably failed to prove the guilt of the accused.