LOBHA RAM Vs. STATE OF H P

JUDGEMENT

(1.) THIS appeal has been directed against judgment of conviction and sentence, dated 28-3-2006, passed by the learned Sessions Judge, Kullu in Sessions trial No. 67-05, vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5000/- for the commission of offence, under Section 376 IPC, in default of payment of fine, the appellant is to undergo further imprisonment for three months. The appellant has also been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1000/-under Section 452 IPC and in default of payment of fine, he has been directed to further undergo imprisonment for two months. The appellant has also been directed to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- for the commission of offence, under Section 506 IPC, and in default of payment of fine, the appellant shall undergo imprisonment for one month. All the sentences shall run concurrently.

(2.) THE prosecution case in brief is that complainant PW-2 Khub Ram reported the matter at Police Station, Banjar on 11-3-2005 and stated that he married PW 1 prosecutrix, who resides in 'doghara' also known as 'doghari' (small farm house) at place known as Beri Khad. He alleged that prosecutrix disclosed him that on 10-3-2005 at 7. 30 p. m. the appellant came to her house, she was cooking meals. The appellant started committing mischief with her due to which she went out of the house and hide hereself in the Ghasni (grazing land) for about half an hour. Thereafter she returned to her house, but appellant again came there and committed forcible sexual intercourse with her. The appellant after committing sexual intercourse, threatened the prosecutrix to do away with her life in case she would disclose the said fact to anybody. On the report of PW 2, an FIR Ex. PW 2/a came to be registered. The case was entrusted for investigation by PW8 SI Dorje Ram to PW9 asi Lekh Ram. On the application Ex. PW 4/a of the Investigating Officer, PW 4 Dr. Richa Malhotra examined the posecutrix and issued MLC Ex. PW 4/b. The site plan Ex. PW 9/a was prepared, photographs Ex. PW 9/b-1 to Ex. PW 9/b-3 were taken. The prosecutrix produced shirt Ex. P-5, sweater ex. P-4 which were taken into possession vide seizure memo Ex. PW 1/a. The appellant was arrested on 11-3-2005, he was medically examined by PW 5 Dr. Shekher kapoor on the basis of application Ex. PW 5/a and MLC of the appellant is Ex. PW 5/b. The report from Forensic Science laboratory was obtained and after completion of the investigation, police report, under section 173 Cr. P. C. was presented to learned chief Judicial Magistrate, Lahaul and Spiti, who committed the appellant to the Court of learned Sessions Judge for trial. The appellant was charged, under Sections 452, 376 and 506 IPC to which he pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statement of appellant was recorded, under Section 313 cr. P. C. , he denied the case of the prosecution. The appellant did not lead any evidence in defence. The learned Sessions Judge on 28-3-2006 convicted and sentenced the appellant, as noticed above, hence this appeal.

(3.) I have heard Mr. Sanjay Dutt vasudeva, learned counsel for the appellant and Mr. A. K. Bansal, learned Additional advocate General, representing the State and gone through the record. It has been submitted on behalf of the appellant that the learned Sessions Judge has not appreciated the material on record properly. The prosecutrix is about 50 years of age, married having children and the appellant is about 35 years of age. The prosecution story is highly improbable and is full of infirmities. The medical evidence has not supported the prosecution. It is not a case of the nature where sole testimony of the prosecutrix is enough to convict the accused. There are material contradictions and improvements in the prosecution story. The learned sessions Judge has not drawn proper inference from the material on record and has erred in convicting and sentencing the appellant. On the facts established on record, the appellant is entitled to acquittal. On the contrary, learned Additional Advocate General has submitted that the appellant assaulted the prosecutrix on finding her alone in the house. The 'doghara' of the prosecutrix is situated at an isolated place. There is no reason to disbelieve the testimony of the prosecutrix. The statement of the prosecutrix does not require corroboration. The prosecution has proved the case against the appellant. The learned Sessions Judge has rightly appreciated the material on record and no fault can be found with the judgment of conviction and sentence recorded by the learned Sessions Judge.