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Himachal Pradesh High Court · body

2015 DIGILAW 1032 (HP)

Vipan Kumar v. State of H. P.

2015-08-06

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment/order dated 25.2.2014/26.2.2014 rendered by the Sessions Judge Kullu in Sessions Trial No. 38/2013 (4167/2013), whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 376 IPC has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.20,000/- and in default of payment of fine he was further directed to undergo rigorous imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that on 9.8.2012, at about 6.30 pm at Lower Bhosa, the prosecutrix, daughter of the complainant, Smt. Hiramani, had gone to urinate. The prosecutrix did not come back. Her mother went outside in search of the prosecutrix. At 9.30 pm, Smt. Hiramani saw her daughter coming out of the quarter of the accused. On asking, the prosecutrix told her mother that accused used to come and give her biscuits and thereafter used to take her to his quarter earlier also. Accused had committed sexual intercourse with her on two occasions. The prosecutrix also disclosed that she was taken by the accused inside his quarter and he committed sexual intercourse with her. She developed stomach ache and blood also started oozing out from her private part. The accused told her not to disclose this fact to anybody. The age of the prosecutrix was 13 years. She was mentally weak. The prosecutrix was got medically examined. The police also took into possession the birth certificate of the prosecutrix. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined a number of witnesses to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused as noticed hereinabove. Hence, this appeal. 4. Mr. Lalit Kumar Sehgal, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. 4. Mr. Lalit Kumar Sehgal, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Smt. Hiramani has testified that in the month of Bhadon about nine months back, prosecutrix had gone to urinate at about 6.00 pm. She did not come back. They searched her. She could not be traced. Prosecutrix was found in the house of Sher Singh, in which there was quarter of accused. The prosecutrix told her that accused called her and asked to take biscuits. The prosecutrix disclosed to her that accused asked her to remove her pajama and committed wrong act with her. There was bleeding from the private part of the prosecutrix. She reported the matter to the police. FIR is Ext. PW-1/A. The prosecutrix was medically examined. In her cross-examination she has deposed that age of the prosecutrix was 13 years. The prosecutrix could identify the eatables such as rice and roti. 8. PW-2 Ibrahim deposed that accused used to reside in the house of Sher Singh in village Bhosa. 9. PW-3 Doctor Sarita Sharma has medically examined the prosecutrix. According to her, Labia Majora was covering Labia Minora. Hymen was torn, one tear was present at 6’o clock position, fresh blood was present, which bled on touch. Another tear was present at 10’o clock position. Fresh blood was present. Hymen tear was within 48 hours to 72 hours, bruises within 48 hours and abrasions within 24 to 48 hours. According to her final opinion, there was interference with external genitalia. She issued MLCs Ext. PW-3/B and PW-3/C. 10. PW-4 Dr. Rituvesh Negi has medically examined the accused. He issued MLC Ext. PW-4/A-1. 11. PW-5 Rot Ram is the father of the prosecutrix. He had gone to Bhunter on 9.8.2012. He came back at 9.45 pm. When he reached home, his wife told him that accused has committed sexual act with his daughter. His wife also disclosed to him that prior to it, accused had also committed similar act with his daughter. Accused was living in the house of Sher Singh. 12. PW-6 Padma has testified that accused used to live with him at his home. When he reached home, his wife told him that accused has committed sexual act with his daughter. His wife also disclosed to him that prior to it, accused had also committed similar act with his daughter. Accused was living in the house of Sher Singh. 12. PW-6 Padma has testified that accused used to live with him at his home. One girl came in their room and thereafter she left the room. She remained in the room for about 5-10 minutes. The witness was declared hostile and cross-examined by the learned Assistant Public Prosecutor. 13. Statements of PW-7 Lal Chand, PW-8 Naresh Chand, PW-9 Tara Chand, PW-10 Uma Devi, PW-11 Khem Chand and PW-12 Kushal Dev are formal in nature. 14. PW-13 is the prosecutrix (name withheld). She knew the accused. Accused used to give her biscuits. He had taken her to the room and committed sexual intercourse with her. She developed stomach ache. She narrated the occurrence to her mother. Blood also oozed out from her private part. 15. Statement of PW- 14 Yog Raj is formal in nature. 16. The age of the prosecutrix is 13 years. She was of low intellect though of sound mind as per the observation made by the trial court while recording her statement. PW-1 Smt. Hiramani, mother of the prosecutrix has deposed that the prosecutrix had gone to urinate at about 6.30 pm. She did not come back. The prosecutrix was found in the quarter of the accused. The prosecutrix narrated that accused used to call her and asked her to take biscuits. The accused had asked her to remove her pajama. He has committed wrongful act. PW-13 Prosecutrix has categorically deposed that accused has taken her to his room and committed sexual intercourse with her. According to PW-3 Dr. Sarita Sharma, the hymen was torn. She noticed bruises and abrasions on the body of the prosecutrix. She issued MLC. According to her, there was interference with external genitalia of the prosecutrix. The accused was also medically examined by PW-4 Dr. Rituvesh Negi. PW-5 Rot Ram has also supported the version of PW-1 Smt. Hiramani. According to PW-5 Rot Ram, his wife had told him that his daughter was raped by the accused. The accused had taken advantage of weak intellect of the prosecutrix by alluring her to his quarter and raping her. 17. Mr. Rituvesh Negi. PW-5 Rot Ram has also supported the version of PW-1 Smt. Hiramani. According to PW-5 Rot Ram, his wife had told him that his daughter was raped by the accused. The accused had taken advantage of weak intellect of the prosecutrix by alluring her to his quarter and raping her. 17. Mr. Lalit Sehgal, has vehemently argued that his client was falsely implicated as there was some money dispute. There is no evidence worth credence on record to support his submission. No respectable family would falsely implicate a person even if there is some money dispute. Statement of PW-13 prosecutrix is natural and inspires confidence. Her statement is duly corroborated by medical evidence. Date of birth, as per Ext. PW-12/A of the prosecutrix is 3.12.1997. 18. Mr. Ramesh Thakur, learned Assistant Advocate General has drawn attention of the Court to Ext. PW-14/E. The first profile matched with the DNA profile obtained from Exhibit-4a (shirt of prosecutrix) and Exhibit 5(vaginal slides of prosecutrix) and the second profile matched with the DNA profile obtained from Exhibit-2d (blood sample of accused). Human semen was detected on Ext. PW-1/A (underwear of accused). Human blood was detected on the Ext. 4C (Salwar of the prosecutrix) though semen was not detected. Reports Ex.PW-14/D and Ex.PW-14/E further strengthen the case of the prosecution that it was accused, who has raped the minor. 19. Accordingly, in view of the analysis and discussion made herein above, there is no merit in the appeal and the same is dismissed.