STATE OF HIMACHAL PRADESH Vs. HARBILAS

JUDGEMENT

(1.) Harbilas accused-respondent was convicted by the Sessions Judge Una for offences under Sections 376 and 377, I.P.C. for having committed rape and carnal intercourse on a girl of about 8-1/2 years of age and sentenced to undergo imprisonment for two years and to pay a fine of Rs. 2,000/ - and in default of payment of fine, to undergo imprisonment for three months under Section 376 I.P.C. and for offence under Section 377, I.P.C., he was sentenced to undergo imprisonment for two years and fine of Rs. 2,000 and in default there of imprisonment, for three months. The substantive sentences were ordered to run concurrently and the fine, if realised was ordered to be paid to the prosecutrix. It may be stated that the accused respondent did not challenge the judgment and order dated 23-7-1997 passed by the learned trial Judge. Being aggrieved by the judgment and order of the learned trial Judge, the State of Himachal Pradesh preferred the present appeal under Section 377 Cr.P.C. on the ground of inadequacy of sentences imposed upon the accused-respondent. This Court on 16-12-1997 appointed Shri Anup Chitkara, Advocate to conduct this appeal on behalf of the accused respondent as he could not engage any lawyer to defend due to his financial position.

(2.) Briefly stated the prosecution case is as follows: Naresh Kumar, husband of Smt. Sandhya (PW. 1) and father of prosecutrix Kumari Veena (PW. 2) and the accused-respondent are residents of village Ambota, Tehsil Amb, District Una. They are living in the same vicinity. On 6-1-1997 when the prosecutrix Kumari Veena was playing in the vicinity of her house near the house of the accused-respondent, the accused-respondent alleged to have taken her to a room of his house. The accused-respondent forcibly committed sexual intercourse and also voluntarily had carnal intercourse with her in his house Kumari Veena Started bleeding and her clothes were drenched with blood. She returned to her house weeping and seeing the prosetutrix in that state, PW. 1 Smt. Sandhya her mother questioned her about the matter. The prosecutrix narrated to her mother that she had been forcibly raped and was also subjected to unnatural offence by the accused-respondent in his house matter being laid on the col. Smt. Sandhya checked the vaginal part as well as anus of the person of the prosecutrix, which were found to be bleeding.

(3.) Naresh Kumar, husband of Smt. Sandhya was not present at his house as he had gone to earn his wages being a labourer in the State of Punjab. Smt. Sandhya could trace out the whereabouts of her husband after three days of the taking place of the incident and on learning about the occurrence Naresh Kumar returned to his house. He immediately went to police Station, Gagret along with Smt. Sandhya. Smt. - Sandhya lodged F.I.R. (Ext. Pa) dated 10-1-1997 at 2 p.m. 5.1./SHO. Shri Kailash Chand (PW. 9) immediately rushed to the scene of occurrence and prepared site plan (Ext.) (PW. 9/A) of the house of the accused-respondent. He arrested the accused-respondent on 11-1-1997 and recorded his disclosure statement (Ext. PW. 5/A) about concealing the seeks in the room of his house under a grain container. There after, the accused-respondent took out one/piece of socks and handed it over to the Investigating Officer which was taken into possession vide recovery memo (Ext. PW. 5/B), as the same was alleged to have been used by the accused-respondent to wipe out the blood. He recorded the statements of the witnesses and got the prosecutrix and the accused-respondent medically examined from the Doctor. On receipt of the report of the Chemical Examiner Ext. PW. 9/C and after completing the necessary investigation, a charge-sheet came to be filed before the Sessions Judge against the accused-respondent for trial.