AJAY KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS Appeal is directed against the judgment of the learned Addl. Sessions Judge, Kangra at Dharamshala in Sessions Trial No. 51 -II/2005 whereby he has convicted the appellant of having committed the offence of attempt to rape punishable under Section 376 read with Section 511 IPC and sentenced him to five years rigorous imprisonment and to pay fine of Rs. 5000/ -. In default of payment of fine the accused has been directed to undergo simple imprisonment for a period of one more year.

(2.) THE prosecution story, in brief, is that on 5.6.2005 Smt. Babita Devi alongwith her four children had gone to wash clothes at Goh Nalla at about 11 a.m. The prosecutrix was one of these four children. After washing the clothes she and the children returned to the house. When they returned to the house they found that keys had been left behind at the Nalla and therefore the prosecutrix was sent back to the Nalla to bring the keys. The prosecutrix did not return immediately. She came back after about half an hour. She was crying. She told her mother that one person had caught hold of her and untied the string (nara) of her salwar. He thereafter forced her to lie down in bushes along side the water channel. He put his hand on her mouth and tried to rape her. Luckily for the prosecutrix, two boys Sonu and Monu sons of Raj Kumar appeared at the spot. On seeing them the accused fled away from the spot. According to the prosecution before leaving the spot accused threatened all the children with dire consequences in case they told anyone about the incident. On the date of the incident the husband of the mother returned home late in the evening and therefore FIR Ext. PW -3/A was lodged on the next date. The prosecutrix was got medically examined. Investigation was done and thereafter the challan was filed against the accused. The accused was charged with having committed offence of attempt to rape. The prosecution examined 13 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C. and thereafter the accused was convicted and sentenced as mentioned above.

(3.) THE prosecutrix was examined as PW -4. Since she was of tender age questions were put to her to ascertain whether she could differentiate between right or wrong. According to her when she, her mother and brothers returned from Goh -nalla after washing clothes they found that the house was locked and the keys had been left behind. Her mother asked the prosecutrix to go back to the Goh -Nalla to bring the keys. She went back to the Nalla and found the keys and was returning to her house. When she was near the bridge she met the accused Ajay who took her to the bushes. He opened her salwar and made her lie down on the ground. The accused thereafter took off his pants and underwear. He then lay down on top of the prosecutrix. The prosecutrix tried to cry but the accused had closed her mouth with his hands. In the meantime Sonu and Monu came there. As soon as he saw these two boys the accused rose and wore his clothes. According to the prosecutrix Ajay gave a banana to Sonu and threatened all of them not to disclose about this occurrence to any person. She thereafter wore her salwar and came back her house. She informed her mother about the occurrence. In cross examination she has stated that she was examined in hospital. She admits that she had told her mother that the person who abused her was elder to her father. She has admitted that the accused is much younger than her father. She admits that the villagers had gathered in her house on the date of occurrence and her parents had talked to the villagers assembled there and thereafter the matter was reported to the police. She has been confronted with her statement made to the police in which it is not recorded that the accused took off his underwear and pants and she also again wore her salwar. In cross examination she firstly stated that her mother had disclosed the name of the accused to the villagers but later she again stated that the villagers had told the name of accused to her mother. She volunteered that one Vinod had told the name to her mother. She however was emphatic that she knows the accused herself. She also states that she had told the police that the name of the accused had been disclosed to her mother by Vinod Kumar.