STATE OF HIMACHAL PRADESH Vs. KAMAL KISHORE

JUDGEMENT

(1.) This appeal at the instance of the State of Himachal Pradesh is against the judgment dated 16-9-1991 whereby the Sessions Judge, Una has acquitted the respondent under Section 376, I.P.C. The brief facts of the case are that on 23-5-1989 at 11.15 a.m. the prosecutrix alongwith her parents came to police station Bangana and made a report on the basis of which FIR Ex. PC. was recorded. According to her she was studying in Primary School Raipur and her father was working as labourer. On Sunday the 21st May, 1989 at about 6.00 p.m. she had gone to the house of the respondent to watch a film on the television. After watching the television for some time on the asking of the mother of the respondent to bring a Patili (utensil for cooking rice and pulses etc.), the prosecutrix went to the flour mill of the respondent where he was sleeping outside over a cot. When she was returning after picking up the Patili, she was followed by the respondent and as soon as she turned back after keeping the Patili in the kitchen of the respondent, he gagged her mouth with one of his hands and took her to flour mill. After carrying her to the other room the respondent made her to lie on a gunny bag, broke the string of her Salwar (trousers), kept it aside after removing the same from her legs and subjected her to rape. She felt pain and consequently cried but the respondent threatened her that in case she would cry she would be given beating. When after some time the respondent freed the prosecutrix, she found her shirt stained with blood oozing out from her vagina which was washed by her with the water brought by the respondent from his house. Thereafter the prosecutrix put on her Salwar and went to her aunt's house and slept there during the night and went to her house in the morning, where on finding the shirt and Salwar of the prosecutrix blood stained, her mother made enquiries and she narrated the whole incident to her.

(2.) On returning the father of prosecutrix in the evening her mother narrated the entire incident to him and on the next day the prosecutrix was brought to the police station. She has also added that the clothes, which she was wearing at the time of the complained of incident, were taken off by her mother, which were later on taken into possession by memo Ex. PD in the presence of witness Roshan Lal and sent to Chemical Examiner, who detected Spermatozoa on Salwar and blood stains on Salwar and Kameej as per report Ex. PM, and further, stains on Salwar and Kameej were found of human blood by the Serologist as per Report Ex. PN.

(3.) The prosecutrix was medically examined by Doctor J. S. Kanwar PW-14 the then Medical Officer, District Hospital, Una on 23-5-1989, who has identified the prosecutrix in the Court on the basis of identification marks given in his medico-legal certificate Ex. PQ, wherein he has mentioned the following injuries found on genital examination of the prosecutrix :-