State Of H.P vs Suresh Kumar @ Dc

2. Before dealing with the contentions raised on behalf of the parties and in order to appreciate the said contentions it would be necessary to state a few facts leading to registration of the aforesaid criminal case.

3. The age of the prosecutrix - Km. Kusum Lata (PW-3) was opined by PW- 7 Dr. Devinder Kaur as between 5 to 12 years on the date of examination i.e. 17.03.2000. Therefore, there is no dispute with regard to the fact that she was minor at the time of commission of alleged offence of rape. The prosecutrix and the accused are the residents of the same village and in fact they were neighbourers. The respondent - accused was about 25 years of age on the date of commission of the alleged crime whereas, as stated hereinbefore, the prosecutrix was a minor on the date of commission of alleged offence of rape. On 15.03.2000, the parents of the prosecutrix, namely, Smt. Shakuntla Devi, PW-5, and Shri Ramesh Chand had gone to the house of maternal uncle of the prosecutrix. On the said fateful day, PW-4, Km. Punam, the elder sister of the prosecutrix, had gone to the jungle to fetch green leaves for the goats leaving behind the prosecutrix along with her two younger brothers, namely, Vicky and Ajesh at their residence. It is alleged that on the said date the accused went to the house of the prosecutrix and took her to his house and after entering his room the accused bolted the door of the room from inside and put the prosecutrix on the cot and switched on the T.V. It is also alleged that thereafter the accused opened the salwar of the prosecutrix and took off his trouser and underwear and thereafter the accused committed rape on the prosecutrix. Page 2 of 13 The prosecutrix stated in her deposition that she wanted to cry and weep but she could not do so because the accused had gagged her mouth. It is also alleged that after committing the rape the respondent-accused gave a currency note of Rs. 5/- and some "shakkar" to the prosecutrix. The prosecutrix ate the said "shakkar" and thereafter she returned home. When PW-4, Km. Punam, the elder sister of the prosecutrix, returned from the forest after collecting the green leave for the goats, prosecutrix narrated the whole incident of rape on her. On 16.03.2000, when parents of the prosecutrix, PW-5, Smt. Shakuntla Devi and Shri Ramesh Chand returned back to their residence at village Sunali, at about 2.30 p.m., the prosecutrix narrated the incident of rape by the accused to them. PW-4, sister of the prosecutrix handed over currency note of Rs. 5/- to her mother Smt. Shakuntla Devi (PW-5) which was given to her by the prosecutrix on the previous day. Thereafter, the parents reported the matter to the Pradhan of the Gram Panchayat, who sent telephonic intimation to the police station. The police reached the village on 16.03.2000 at about 9 p.m. and recorded the statement of the prosecutrix, on the basis of which a case for offence under sections 376 and 342 IPC was registered.

4. After registering the case, the police started investigation into the case and during the same the prosecutrix was got medically examined on Page 3 of 13 17.03.2000 at District Hospital, Bilaspur. Dr. (Ms.) J. Goswami (PW-8) conducted the said medical examination. The police also examined the witnesses and on completion of the investigation submitted a charge sheet against the respondent - accused for committing the offence under Sections 376 and 342 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.

5. Consequently, the prosecution examined as many as 13 witnesses to establish the charge against the respondent - accused. The statement of the accused was also recorded under Section 313 Cr.P.C. The respondent- accused led no evidence in support of his denial of the allegation. After conclusion of the trial, the learned Sessions Judge, Bilaspur, Himachal Pradesh by judgment and order dated 30.04.2001, convicted the accused - respondent under Sections 376 and 342 IPC with sentence of rigorous imprisonment of seven years and fine of Rs. 2000/- for the offence under section 376 IPC and rigorous imprisonment of one year for the offence under section 342 IPC. Learned Sessions Judge further ordered that both the sentences of imprisonment would run concurrently.

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There cannot be an order of acquittal of the accused - respondent. Accordingly, we set aside the order of acquittal passed by the High Court of Himachal Pradesh and restore the judgment and order passed by the Sessions Judge, Bilaspur.

17.The accused - respondent is directed to surrender before the trial court forthwith to serve out the remaining period of the sentence within a period of four weeks from the date of pronouncement of judgment failing which he shall be traced out by the police and arrested to serve the remaining sentence.

18.Accordingly, the appeal is hereby allowed.