STATE OF H.P. Vs. KISHAN CHAND

JUDGEMENT

(1.) STATE has appealed against the judgment of the Sessions Court whereby respondent Kishan Chand has been acquitted of the charge of rape, on which he was tried.

(2.) WE may first give a summary of the prosecution version. PW -1 Bhagat Ram is the father of the prosecutrix. He has three children, one daughter and two sons. The prosecutrix, at the relevant time, i.e., in December, 1990, was 5 -1/2 years old. Two -three days before the occurrence PW -1 Bhagat Ram had gone to Civil Dispensary Jamni alongwith his wife to get her operated upon for family planning. He remained with his wife for 2 -3 days at the dispensary after the operation. On 31st December, 1990, when PW -1 Bhagat Ram and his wife were still at Civil Dispensary Jamni and the prosecutrix and the son, younger to the prosecutrix, of Bhagat Ram, were in the village in the care and custody of their grandmother, PW -2 Prabhi Devi, the respondent allegedly committed rape on the prosecutrix, in the afternoon, at a lonely place under a lemon plant. The prosecutrix returned home bleeding from vagina. She was crying. On enquiry by PW -2 Prabhi Devi, her grand - mother, the prosecutrix told that the respondent had committed rape on her. PW -2 Prabhi Devi bathed the prosecutrix and changed her clothes. She then called PW -4 Praveen and one Basanta (since deceased) and asked them to take the prosecutrix to her father at Civil Dispensary Jamni. The prosecutrix was taken by the abovenamed two persons to her father at Jamni. Her father was apprised of the incident. Next day, her father took her to Police Station, Sarkaghat, where a case was registered, on the basis of report made by the father of the prosecutrix. The FIR is Ex. PA. The prosecutrix was got medically examined from PW -7 Dr. Ramesh Chauhan, who noticed clotted blood over labia majora. He also noticed that the hymen was torn. Swelling of labia majora and labia minora was also noticed. Salwar, which the prosecutrix was wearing, was made into a parcel. The parcel was sealed and handed over to the police officials, who accompanied the prosecutrix to the hospital. Slides of vaginal swab were prepared and sent to the Chemical Examiner, alongwith the Salwar of the prosecutrix. Police recorded the statements of the prosecutrix, the grand -mother of the prosecutrix and other witnesses. Site of occurrence was inspected. Blood stains were noticed on the dry leaves of Gaddus plant, on the spot, which were taken into possession and made into a parcel. The clothes of the prosecutrix, which her grandmother had washed after bathing her, were also taken into possession and made into a separate parcel. The leaves and such clothes of the prosecutrix were also sent to the Chemical Examiner, who opined that the Salwar, which the prosecutrix was wearing at the time of her medical examination and the dry leaves collected from the spot were stained with human blood. Respondent was also got medically examined. The doctor found nothing suggesting that the respondent was incapable of performing sexual intercourse.

(3.) TRIAL Court has acquitted the respondent. And the main reasons given for acquittal are as follows: