PREMU Vs. STATE

JUDGEMENT

(1.) ACCUSED -appellant, Premu, has been convicted for commission of rape on the prosecutrix, Mst. Parveen, and sentenced to suffer imprisonment for six years out of which 1/4th to be rigorous, and a fine of Rs.2000/ - and in default of payment of fine to further imprisonment of six months, by the court of learned Addl.Sessions Judge Ramban by his judgment/order dated 23.7.1997/24.7.1997. The accused was charged for commission of offences under sections 376/342 RPC whereas co -accused, Mst. Vidaya Devi, his wife, was charged for commission of offences as contemplated by sec.342/376 RPC read with sec.114 -RPC. The accused Vidaya Devi has been acquitted by the trial court and State has not filed any appeal against her acquittal. The accused -appellant Premu is in appeal. State has, however, come up in criminal revision against the order dated 24.7.1997 on the question of adequacy of the sentence imposed by the Trial court.

(2.) THE case of the prosecution before the Trial Court was that on 19.4.1985 the father of the prosecutrix PW Nazir Ahmed when was away from the house, wife of the appellant, Vidaya Devi, came to the house of the prosecutrix at 7 PM and asked her to come alongwith her for giving her company for the night as her husband, the appellant, was away and she was alone in the house. On the request of Vidaya Devi the prosecutrix went with her to the house of the accused. The accused and father of the prosecutrix are neighbours. During the night at about 8.30/9 PM the accused returned to his house. On his return the prosecutrix asked him to be taken back to her house but the appellant and his wife told the prosecutrix that as it was already late so she should stay for the night and would be sent back in the morning. The prosecutrix thus stayed in the house of the accused for the night. The prosecutrix at the time of occurrence was minor, aged ten years. She, as per the prosecution story, was sleeping. During the night the accused picked up the prosecutrix and made her to sleep with him. Then he untied her shalwar and committed sexual intercourse with her. the next day i.e. 20.4.1985 the prosecutrix was forced by the accused out of his house. She came out crying, whereupon PW Shamima Begum, who happened to be a relation of father of the prosecutrix, noticed her in a bad shape. She took her to her home and sent information to the father of the prosecutrix,PW Nazir Ahmed who was at Dharamkund. He reached back in the afternoon and after coming to know about the incident lodged a written report in Police Station Ramban on 21.4.1985. On his report FIR was registered at 18.30 hours for commission of offences u/ss 376,342/109 RPC. The prosecutrix could not be got medically examined, as in Ramban hospital no lady doctor was available. She was sent to Batote hospital but in Batote hospital too no lady doctor was available, therefore, she was taken to Udhampur hospital where she was examined on 23.7.1985 at 7 AM.

(3.) PW Dr.Sumriti Gulahti,Assistant Surgeon District Hospital Udhampur on examination of the prosecutrix noticed that the clothes of the prosecutrix had stains of secretions mixed with blood .external marks of violence present on both sides of labia majora and below the vulva. There were reddish patches of skin and prosecutrix was bleeding. It was found that bleeding was present, hymen was ruptured, a slight tear on the mucosal surface was bleeding. On vaginal smear examination many RBC were found but no spermatozoa was seen. The doctor also observed that as per history rape had been done three days back on 19/20 April 1985, so in her opinion it was possible that no spermatozoa could be seen in vaginal smear. She opined that it appeared to her that rape had been done or something had been admitted in vagina.