SUKESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal has been preferred by the accused-appellant (hereinafter referred to as the accused) against the judgment dated 19-2-1996 passed by the learned Addl. Sessions Judge (I), Kangra at Dharamsala whereby the accused has been convicted under Section 376, IPC and has been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further imprisonment for a period of one year.

(2.) The case of the prosecution, in brief, is that PW-1 Kumari Parvita (hereinafter referred to as the prosecutrix) resident of village Bahar was studying in 7th class in Government Middle School, Jasai in May, 1994. On 9-5-1994 when the school closed at 2 p.m., she left for home. At about 2.30 p.m. when she reached near a Baniyan tree at Kupru, she saw a boy aged about 22-23 years sitting under the said tree. When she reached near him, he got up and enquired from her about the distance of the house of Parveen Driver of War. The prosecutrix informed him that it was at some distance from there. The said boy informed her that he was to go there. He started walking with the prosecutrix. When they had covered some distance, the said boy caught hold of the prosecutrix from the neck from behind and threatened her that in case she created any noise, he would kill her. He then took her to the Nallah, laid her on the ground, broke the string of her Salwar and committed rape on her. During the process, the prosecutrix continued weeping. After having committed rape on her, the said boy again warned her that in case she raised hue and cry, he would kill her and then asked her to go home. On reaching at home, the prosecutrix narrated the occurrence to her sister-in-law and sister and in the evening also narrated the occurrence to her father. The occurrence was reported by the prosecutrix to the police at Police Station, Kangra on 14-5-1994 where FIR Ex. PW-1/A came into being. During the course of investigation, the prosecutrix was got medically examined and the MLC in respect of such examination is Ex. PW-11/A. Her Salwar Ex. P-1, shirt Ex. P-2 were taken in possession by the police vide memo Ex. PW-1/B. The Chadru Ex. P-3 which was put around her neck by the accused while removing her to the Nallah, on production by the prosecutrix and the Resha of such Chadru Ex. P-4 found on the place of occurrence were taken in possession by the police vide recovery memo Ex. PW-1/C and Ex. PW-1/D. The opinion about the ossification age of the prosecutrix was also taken which is Ex. PW-10/C and it has been opined therein that the age of the prosecutrix, at the relevant time, was more than 11 years, but less than 18 years. The police also took in possession the certificate of birth of the prosecutrix Ex. PW-15/A mentioning her date of birth as 18-1-1981. After arrest bythe police, the accused was also medically examined and the MLC about such examination is Ex. PW-6/A. While in custody, the accused made a disclosure statement to the police which is Ex. PW-4/A and as a consequence thereof, one pant, one shirt and one underwear of the accused were recovered by the police vide memo Ex. PW-7/A. Since the rapist was not earlier known to the prosecutrix, therefore, test identification parade of the accused after his arrest was got done from PW-12 S. S. Garg, who was the then S.D.J.M., Kangra and has proved the proceedings of such parade Ex. PW-12/A. The recovered articles that is the wearing apparels of the prosecutrix and the accused and the thread were sent for examination to the State Forensic Science Laboratory and the report received from such Laboratory is Ex. PX. On being satisfied that it was the accused who has committed the offence complained against, the officer in-charge, Police Station, Kangra submitted the charge-sheet against the accused under Section 376, IPC. The accused was tried by the learned Addl. Sessions Judge (I), Kangra on a charge under Section 376, IPC.

(3.) To prove the charge against the accused, the prosecution examined as many as 15 witnesses.