SAIF UD DIN BARBHUIYA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was found to have committed civil offence falling within the purview of S. 376(1) of the Penal Code. He was charged under S. 69 of the Army Act. The Officer Commanding of the Unit considered the matter and decided to try the petitioner in a summary General Court Martial. An order to this effect was passed. Members, Waiting Members, Judge Advocate and Lawyers were nominated. The trial commenced. The statement of the prosecutrix and other witnesses came to be recorded. The prosecutrix Miss. R. D. appeared as P.W. 2. She gave her age as 14 years. She stated that on 2-9-1996 along with her Mausi (mother's sister) and Miss. K. D. were returning back after seeing the Ladakhi Festival. She stated that near Juma Bagh opposite to Artilop Guest Room, a blue coloured Gypsy was there. The driver offered a lift to her Mausi. The two ladies along with prosecutrix got into the Gypsy. After while she noticed her mother and father coming from the opposite direction, all of them told the driver to stop the vehicle but he did not do so. The vehicle when reached the Lamdon School, the prosecutrix along with two other ladies wanted to get down. He, however, did not stop and vehicle was taken towards the Gompa. The prosecutrix and two other ladies saw two persons walking on the road. All of them shouted 'Bachao-Bachao'. At this point of time, Miss K. D. opened the front door of the Gypsy and jumped out of the vehicle. Similarly her Mausi also jumped. The prosecutrix also wanted to get out of the vehicle but she was caught by her hair and the driver kept driving the vehicle.

(2.) The prosecutrix submits that she made a compassionate appeal with folded hands to leave her but she was taken towards the Gompa. The vehicle was thereafter taken to some houses (Ganglas). She was pulled out of the vehicle. He undressed her after gagging her. He started kissing her. He is also said to have bitten her on her right ear, shoulder and nipples. After removing his pant and underwear he mounted on the prosecutrix. He wanted to put his male organ inside the Vagina. At this time, the prosecutrix saw the police Gypsy. She shouted for help. The petitioner is said to have gagged her and threatened her if she makes loud voice, he would hit her with a stone. However, the police party came there. On seeing the police party, the petitioner got into the vehicle and fled away leaving the prosecutrix lying on the ground. She is said to have picked up her pent and shoes and went towards the police vehicle. The police vehicle then tried to chase the petitioner. However, they were unable to do so. After sometime, the Gypsy in which the petitioner carried away the prosecutrix came from the opposite from the other side. As the petitioner refused to stop the vehicle, stones were thrown on the Gypsy. Wind screen was broken. The petitioner was chased and was caught. The prosecutrix has brought to the police station where her Mausi and Miss K.D. were also present. All of them were sent for medical examination. The lady doctor examined the prosecutrix. As the prosecutrix was made to lie on the ground, there was clot of mud on her body. She stated that the petitioner had bitten on her left ear and in the area of shoulder and nipples. The prosecutrix was cross-examined. What has come out in the cross-examination is reproduced below:-

(3.) The prosecutrix was examined by Medical Expert namely Mrs. (sic) P.W. 5. She was Duty Casualty Medical Officer at S. N. M. Hospital Leh. At about 0045 hours on 3-9-1996 two police constables brought the prosecutrix for medical examination. Two more ladies i.e. her Mausi and Miss K.D. were also there. On examination following opinion was expressed by the lady doctor :-