IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.61/2001 Reserved on.24.12.2007 Decided on.3.1.2008 Ajay Kumar. …Appellant. Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellant : Mr. Naresh K. Sood, Advocate. For the respondent : Mr. Meenakashi Sharma, Deputy Advocate General. Rajiv Sharma, J. The appellant was prosecuted under sections 376, 511 and 506 of the Indian Penal Code in the Court of Sessions Judge Chamba Division, Chamba in Sessions Trial No. 25 of 1996 and was convicted and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1000 under section 376 read with section 511 and in case of default of payment of fine, the convict was further directed to undergo simple imprisonment for a period of 3 months vide judgment dated 27.12.2000. The appellant has challenged this judgment dated 27.12.2000. The brief facts as culled out from the judgment of the learned Sessions Judge are that on 19.5.1995 during day time Kumari Rohina had gone to fetch the water from the village water source where the accused- appellant met her who was having a ‘Gagar’ with him. In the meantime, 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 one Dharminder also came there and accused gave his Gagar to Dharminder and then took the prosecutrix inside the Gohran (cattle shed) and gave her two bubble gums. The appellant-accused took off his pent and thereafter untied the string of Salwar of Kumari Rohina and spitted on her private part and then asked Kumari Rohina to catch hold of his waist with her hands and then tried to put his penis into the private part of Kumari Rohina. The appellant threatened Kumari Rohina that in case she told about the incident to anybody, he would kill her. Thereafter the accused took Kumari Rohina to his sleeping room and repeated the same act with Kumari Rohina and on the next day he took her to Baggi Nallah and again committed the same act with her. Kumari Rohina narrated this incident to her maternal grand-mother Shimla Devi, but since her maternal grand-father Hoshiar Singh was away the matter could not be reported to the police immediately. Shimla Devi went to Chamba and informed Hoshiar Singh about the occurrence who came to village Kandi and enquired about the occurrence from the prosecutrix and thereafter reported the matter at Police Station Khairi. The prosecutrix was medically examined by the doctor. Her salwar and shirt were taken into possession. The clothes taken into possession by the police were sent for chemical analysis to Forensic Science Laboratory and as per the report of the Chemical Examiner human semen was found on the salwar of the prosecutrix. The matter after investigation was put up for trial. The accused was charged for offence punishable under section 376 read with section 511 and 506 of the Indian Penal Code. The prosecution examined as many as 14 witnesses to bring home the guilt against the appellant. The appellant was examined under section 313 of the Code of Criminal Procedure. The learned Sessions Judge after examining the entire evidence had sentenced and convicted the appellant under section 376 3 read with section 511 of the Indian Penal Code to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1000/- and in default of payment of fine, the appellant was directed to further suffer simple imprisonment for a period of 3 months. This appeal has been preferred by the appellant assailing the judgment of the learned Sessions Judge, Chamba dated 27.12.2000 and conviction dated 28.12.2000. Mr. Naresh K. Sood, Advocate appearing on behalf of the appellant had submitted that the prosecution has miserably failed to prove its case against the appellant. He had further contended that the court below has not properly appreciated the material on record and the prosecution case was full of contradictions. The prosecution story is highly improbable. The appellant has been falsely implicated in the case. The learned Deputy Advocate General appearing on behalf of the State has supported the judgment dated 27.12.2000. She has further submitted that the prosecution has proved the case against the appellant- accused beyond reasonable doubt. I have heard the learned counsel for the parties and perused the record meticulously. The prosecution main witnesses are PW-3 Kumari Rohina and PW-7 Dharaminder. The sequence of events narrated by Kumari Rohina while appearing as PW-3 is natural and has rightly been believed by the learned Sessions Judge. The prosecutrix was produced before the doctor i.e. PW-5 Dr. (Mrs) Kamlesh Dogra, who after examining her issued the medical legal certificate Ex.PC. She has categorically pointed out that if the penetration is upto vulva there could be no injury and the swelling, if any, would disappear within 2 to 7 days. The clothes of Kumari Rohina were produced before the police by Shimla Devi in the presence of PW-2 Raj Kumar. It has come in the chemical analysis that the human semen 4 was found on the salwar of the prosecutrix. The statement of PW-3 has been corroborated fully by PW-7 Dharaminder. He has stated that appellant had handed over the Gagar to him for carrying the water and that he would follow him (Dharaminder). It further strengthens the case of the prosecution that the accused and the prosecutrix were seen together on 19th May, 1995. The appellant-accused was not in a position to substantiate that there was any enmity of the accused with PW-7 Dharaminder. There are no contradictions as submitted by Mr. Naresh K. Sood in the FIR and the statement of Kumari Rohina. The FIR was got recorded by her maternal grand-father Sh. Hoshiar Singh. The incident has been narrated by the prosecutrix to her grand maternal mother. The maternal grand mother had narrated the incident to her husband and he visited village Kandi and thereafter the FIR was registered. The appellant- accused has failed to show that there was any enmity between his family and Kumari Rohina. It cannot be imagined by any stretch of imagination that due to the pendency of a Panchayat case between Hoshiar Singh and mother of the accused, Hoshiar Singh would implicate the accused in a rape case that too of a minor. The delay in lodging the FIR in view of the facts and circumstances when the minor was involved has been fully explained by the prosecution. The Sessions Judge has rightly relied upon in case State of Rajasthan versus N.K. 2000 Cri. L. J. 2205 more particularly when the delay has been explained in lodging the FIR. The learned Sessions Judge after correctly appreciating the evidence of the prosecution has rightly convicted and sentenced the appellant for committing an offence under section 376 read with section 511 of the Indian Penal Code. The prosecution had fully proved the case against the appellant and the well reasoned judgment of the trial court dated 27th December, 2000 does not deserve to be interfered by this Court. 5 For the above stated reasons, I found no ground has been made out warranting inference in the conviction and sentence of the appellant recorded by the learned trial court. Accordingly the appeal is dismissed. The appellant is on bail. His bail bonds shall stand cancelled and he is ordered to be taken into custody for under going the sentence awarded to him by the learned trial court. ( Rajiv Sharma), Judge January 3, 2008 *Awasthi*