STATE OF H.P. Vs. AMIN CHAND

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment of the learned Sessions Judge, Kangra at Dharmshala, in Sessions Trial No. 5 of 1994 whereby he acquitted the accused of having committed an offence punishable under Section 376 IPC.

(2.) THE prosecution story in brief is that one Bimla Devi, who is a Nepali, was residing in a hut at Ghera near Gaj Project site alongwith her husband Man Bahadur. They had three children. One daughter, Lovely aged about 5 years, younger daughter (name withheld) aged about 2 -1/2 years and son Veeru aged about one year. Both Bimla Devi and her husband worked as labourers in the Gaj Project. The respondent -Amin Chand, who was also a labourer, lived in another hut nearby. It is alleged that on 28.11.1993 at about 4.30 p.m. Bimla Devi and her husband were sitting in their hut. Their children were playing in the hut of the accused. Bimla Devi heard the cries of her younger daughter. She rushed towards the hut of the accused. When she reached the hut of the accused she found that the accused was lying on the top of her younger daughter who was only aged about 2 -1/2 years. The accused was naked below the waist and his Pajama was lying near his feet. She caught hold of the accused by his coat and pulled him away. She saw that the private parts of her daughter were bleeding. She called for her husband, who reached the spot and the accused was beaten up. The child, who had been raped, was carried to the Police Station and on the basis of the complaint made by Smt. Bimla Devi, FIR No. 345 of 1993 was recorded against the accused. The prosecutrix was subjected to medical examination. After completion of the investigation challan was filed against the accused.

(3.) THE main ground for acquitting the accused was that Section 157(1) of the Code of Criminal Procedure was not complied with and there was delay in sending the report of the F.I.R. to the Magistrate. The second ground which weighed with the learned trial Judge was that the sealed packets containing the frock of the victim, two slides of vaginal smear and swab which were removed from the thighs and perineal region of the victim had been sent to the Forensic Science Laboratory by PW -8 on 30.11.1993 through PW -7 constable Arvind Kumar and the link evidence regarding these vital pieces of evidence is missing. The learned trial Court also held that the prosecution version could not be believed since the father of the prosecutrix was engaged in the sale of Rum to which the accused had objected and therefore, false case may have been lodged against the accused.