RAKESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The present criminal appeal has been maintained by the appellant-accused-convict (hereinafter to be called as "the accused") against the judgment dated 05.11.2016, passed by learned Additional Sessions Judge (II), Kangra at Dharamshala, H.P., in Sessions trial No. 14-K/VII/2014/13, whereby the accused was convicted for commission of offences punishable under Sections 363, 376 and 377 of the Indian Penal Code.

(2.) Succinctly the facts giving rise to the present appeal as per the prosecution story are that on 30.03.2006, the prosecutrix (name withheld) alongwith her nephew was returning from her sister's house. About 4:00 p.m. they reached at Kangra Bus Stand and were waiting for the bus. In the meanwhile, accused met them and introduced himself by saying that the father of nephew of prosecutrix is his uncle and took prosecutrix and her nephew to a nearby shop, where he offered them tea and snacks. The accused was having a bag with him, which he handed over to the nephew of the prosecutrix. The accused took the prosecutrix with him from the back side of the bus stand towards the main road and then to bus stand. The nephew of the prosecutrix waited for a long for return of the prosecutrix, but she did not return. Thereafter one Ravi Kumar came there, to whom he narrated the incident. The nephew of the prosecutrix thereafter returned home and also narrated the incident to his father, who called the father of the prosecutrix and informed him about the matter. The father of the prosecutrix alongwith other relatives thereafter searched the prosecutrix in Kangra Bazar, but could not find her. Around 9:30 p.m., the matter was reported to the police of Police Station Kangra, subsequently, FIR No. 120/06, under Section 363 of the Indian Penal Code was registered. S.I. Kamal Jeet Singh investigated the matter and seized plastic bag, having clothes of the accused, which was handed over by the accused to the nephew of prosecutrix. On the next day, i.e. 31.03.2006, the prosecutrix returned home and disclosed that the accused firstly took her to Gaggal on the pretext that his sister is waiting at Gaggal and from Gaggal to Dharamshala and thereafter to Sheela Chowk by bus and lastly to nearby field of Sheela Chowk, where he committed rape and sodomy with her. The statement of the prosecutrix was recorded, she was medically examined at Civil Hospital Kangra and medico legal certificate was procured. The Medical Officer concerned handed over a parcel containing swab hair vagina, swab from exit genitalia, swab from anus and vaginal slides to the police. For expert opinion, the prosecutrix was referred to Dr. Rajinder Prasad Medical College Tanda, where it was opined that possibility of sexual intercourse and sodomy cannot be ruled out. Accordingly, Sections 376 and 377 of IPC were incorporated in the case. The prosecutrix also got scene of crime identified. On the basis of which, spot map was prepared. The aforesaid parcel, containing swabs of prosecutrix was sent for forensic examination to SFSL, Junga and after receipt of SFSL report, it was opined by the Medical Officer that there is possibility of sexual intercourse and sodomy. The birth certificate of the prosecutrix was also procured. During investigation, it was revealed that name of the accused, who committed the crime is Fanger @ Rakesh Kumar of village Sohara, but he could not be traced, as such, untraced report was prepared and was filed before learned JMIC, Kangra, which was accepted by learned Magistrate.

(3.) On 19.03.2013, police got information that the accused was seen in the area, so the police moved an application to investigate the matter. On the same day, at 7:00 p.m., the accused was arrested. Thereafter, he was sent to Civil Hospital Kangra for medical examination, whereupon it was opined that there is no abnormality in his genitalia and he is capable of doing sex. On 20.03.2013, in presence of Tehsildar, Test Identification Parade of accused was conducted in District Jail, Dharamshala. On 01.04.2013, blood sample of the accused was taken on FTA Card for DNA profiling and the same was sent for forensic examination to FSL Junga. On completion of investigation, challan was presented before the Court.