LALIT KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant appeal has been preferred by the appellant/convict/accused (hereinafter referred to as "the accused") laying challenge to the judgment, dated 22.07.2016, passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 9-N/7 of 2013, whereby the accused was convicted for the commission of offence punishable under Sections 376, read with Sec. 511, and Sec. 506 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").

(2.) Tersely, the facts giving rise to the present appeal, as per the prosecution, are that on 14.01.2013, Smt. Nirmala Devi (complainant), lodged a report with the police that she lives in Housing Board Colony, Nahan, alongwith her husband and children and her husband is serving in the office of District and Sessions Court, Nahan. As per the complainant, she has two daughters, elder daughter is 20 years of age and younger daughter, the prosecutrix (name withheld) is about 18 years of age. She has further alleged that on14.01.2013, around 12:30 p.m., she went to her neighbor's house to give vegetables and the prosecutrix was made to sit in the room, however, on her return, around 01:00 p.m., she noticed the prosecutrix coming out from the back door of the house of accused, who is working as Process Server in the Court, and she was pulling her shirt downwards. The prosecutrix was shivering, having teary eyes and on asking she told her that the accused called her to his room. On relentless questioning, the prosecutrix divulged that accused opened her pant and did wrongful act with her. The complainant checked the private parts of the prosecutrix and noticed some liquid creamy substance. The complainant further alleged that prior to this incident, the accused had also done wrongful act with the prosecutrix. Consequently, the complainant telephonically informed her husband and when he came to the house, the complainant narrated the entire incidence to him. The husband of the complainant further called his brother, Shri Amarjeet Singh, and all of them went to police station for lodging a report. Report was registered and investigation ensued. During the course of investigation, the prosecutrix was medically examined, spot map was prepared and the statements of the witnesses were recorded. The accused was arrested and was medically examined. The room of the accused was thoroughly inspected and the police took into possession a bed sheet, at the instance of the prosecutrix, which was sealed in a parcel having seal impression 'I'. The accused gave demarcation of the spot, whereupon spot map, Ex. PW-13/D, was prepared. On 16.01.2013, the accused got recovered one tube of 'Boro Plus Cream' which was taken into possession vide separate memo, Ex. PW-5/B and the same was sealed. The parcels were sent to SFSL, Junga, for chemical analysis. As per the prosecution, the prosecutrix was suffering from mild mental retardation and qua this aspect she was medically examined by Dr. Pravesh Aggarwal and her disability certificate, Ex. PW-11/A, was obtained. As per the opinion of the doctor, the mental age of the prosecutrix was opined as seven years. The police, after completion of the investigation, concluded that the accused did not commit any sexual assault on the prosecutrix, however, he attempted to commit rape, thus Sec. 376 Penal Code was deleted and chargesheet was filed for the commission of offence punishable under Sec. 376 read with Sec. 511 Penal Code. After completion of investigation, challan was presented in the Court.

(3.) The prosecution, in order to prove its case, examined as many as thirteen witnesses. Statement of the accused was recorded under Sec. 313 Crimial P.C. wherein he denied the prosecution case and claimed innocence. A Court witness was examined and the accused, in defence, examined a witness.