NAND LAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant-accused (hereinafter referred to as the Accused) has preferred the present appeal against the judgment passed by learned Sessions Judge, Solan in Session Trial No. 2-A/7 of 1999 dated 17-5-1999 whereby the accused has been convicted under Secs. 376/511 I.P.C. and has been sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs.3000/- and in default of payment of fine to undergo further imprisonment for six months.

(2.) Case of the prosecution against the accused is that Kumari Urmila (PW-4) was aged abut 11 years in the year 1991 and was studying in 5th standard in Government Middle School Bathalag. Her brother was also studying in the same school. On September 25, 1991 her younger brother, namely, Baldev passed stool in his clothes whereupon Asha Sharma (PW-6) asked Urmila the prosecutrix to take him with her and wash his clothes. The prosecutrix took her younger brother to the water pond on way to their house where she started cleaning his clothes. At that time accused came there and requested prosecutrix to help him in lifting a maize bundle kept in the field. The accused however took her to a Nallah and subjected her to rape. In the process when the prosecutrix cried, accused threatened her to be throttled in case she cried. Finally the accused fled away. She came to the place where her brother was and then to her house. She narrated the incident to her grand mother, mother Inder Kala PW-1 and aunt Roshani Devi PW-5. They removed her Salwar and examined her private parts and found them swollen and also found whitish stains on her Salwar. The Salwar was taken apart and the prosecutrix was given another Salwar to wear. No male member of the family was present in the house and it had become dark, therefore, on the next day PW-1 Inder Kala along with the prosecutrix went to the Police Station and lodged the F.I.R. Ex. PA at Police Station, Arki. The prosecutrix was sent for medical examination which was conducted by PW-8 Dr. Manjit Kaur Baweja. She preserved the Salwar of the prosecutrix she was wearing at that time, took vaginal swab and issued M.L.C. Ex. PW-8/B. The prosecutrix was referred to radiologist for determination of her age and the report about such test given by PW-9 Dr. R.G. Sood is Ex.PW-9A. During the course of investigation the Salwar Ex. P-1 which the prosecutrix was wearing at the time of the occurrence and was removed by her mother and others when she returned home was produced by the mother of the prosecutrix and was taken in possession by the police vide Memo Ex.PB. The birth certificate of the prosecutrix Ex.PD issued by the Gram Panchayat and certificate regarding her date of birth Ex.PW-3/A issued by the Headmaster of the School where she was studying were also taken in possession by the police. Salwar Ex.P-1 was sent for chemical analysis to the Forensic Science Laboratory, H.P. Shimla and vide report Ex. PH semen stains were found on the Salwar. It is further the case of the prosecution that after committing the rape accused absconded and was declared proclaimed offender. He surrendered and was arrested in November,1998 and was got medically examined from PW-12 Dr. Yuv Raj who has issued the M.L.C. Ex. PW-12/A about such examination of the accused.

(3.) The accused came to be tried by the learned Sessions Judge on a charge under Sec.376 I.P.C.