AMAR DEV Vs. STATE OF H P

JUDGEMENT

(1.) Amar Dev, appellant, has appealed against the judgment of Sessions Judge, Solan, in Case No. I-S/7 of 1986, decided on 20 8,1986, whereby the accused was charged for offence under section 376 of the Indian Penal Code, has been convicted under section 354 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. In default of the payment of fine, to further undergo imprisonment for three months. Out of the fine, Rs. 500/- were ordered to be paid to the father of the prosecutrix, to be spent for the welfare of the minor girl, the victim of the offence.

(2.) The prosecution case, in brief, is that on 31.3.1985, Mange Ram (P.W. 5) had invited Jai Bhagwan Singh (P.W. 1) and his family alongwith others for a lunch in his house. At this time, the children of Jai Bhagwan Singh were playing in the compound of the Block. After taking his meals, Jai Bhagwan Singh locked his quarter, handed over the key to his daughter Kumari Nirmesh and went to Monkey Point where a Kirtan was arranged. The accused threw a nut (Akhort) from the window of his quarter to Kumari Nirmesh. She picked up the same and gave it to her friend Kumari Varkha. The accused then. asked Kumari Nirmesh to come to his quarter and on her coming to his quarter, the accused bolted the door, put off the Shalwar (Ex. P. 2) of the Prosecutrix, inserted his finger into her private part and kissed her for sometime and asked her to kiss his tongue and hold his private part in her hand and then kept the same on her private part. After sometime, the accused opened the door of his quarter and allowed her to go out and she went away. Mange Ram (P.W. 5) told Jai Bhagwan, the complainant, that the prosecutrix was not traceable. Search was made; the prosecutrix was seen standing on the road. On inquiry, the prosecutrix disclosed that she was in the quarter of the accused. The prosecutrix was brought to the house of the complainant where she informed that the accused took her to his room and bolted the door. On this, the complainant came out of his house and called the accused by name who peeped out of the window but shut the same when be was asked by the complainant about his daughter. Thereafter the complainant went to Monkey Point alongwith his daughter, the prosecutrix. At night, on inquiry by the mother of the prosecutrix as what she was doing in the house of the accused, the prosecutrix disclosed that she was playing in the compound when the accused threw an Akhrot which was picked up by her and thereafter the accused called her and she went to him in his quarter. The prosecutrix further disclosed that when she entered the room, the accused shut the door and just like feature film, he started kissing her and thereafter the accused put off her shalwar and inserted his finger into the private part of the prosecutrix. She further told that she felt pain and the accused removed his finger and thereafter he tried to insert his private part into the private part of the prosecutrix but retracted himself as she got wet. The accused asked her to put on her Shalwar and she came out of the quarter of the accused. It happened on 31/3/1985 and on 1.4.1985, the prosecutrix remained normal but on 2.4.1985 some pus came out of the private part of the prosecutrix but she was sent to school after her mother put some cloth on it. On that day, the teacher called the mother of the, prosecutrix to the school and told her that the prosecutrix was feeling some pain. Thereafter the prosecutrix was taken to Kasauli Bazar to a private doctor who gave an injection to the prosecutrix and on 3.4.1985, when the prosecutrix suffered much pain, she was taken to M.I.R. room and thereafter she was sent to Military Hospital, Kasauli. She was at the Military Hospital when the police was informed and statement under section 154 of the Code of Criminal Procedure was recorded by the police. The complainant explained that he did not inform the police as he was out to save his respect. Case was registered and investigation conducted. The accused as well as the prosecutrix were medically examined. Clothes of both, the prosecutrix and the accused, which they were wearing at the time of the occurrence, were taken into possession. Finally, a challan under section 376 of the Indian Penal Code was put up against the accused.

(3.) The prosecution examined eight witnesses. The accused denied his presence at the spot at the - time of the occurrence and stated that he was implicated falsely due to enmity. Five witnesses were examined in defence. The trial ended in the conviction of the accused under section 354 of the Indian Penal Code as offence under section 376 of the Indian Penal Code was not proved.