STATE OF HIMACHAL PRADESH Vs. RAJ KUMAR SON OF HANS RAJ, CASTE SHANSHI, RESIDENT OF PREM NAGAR, GALLI SASH MOHALLA GURDASPUR, PUNJAB

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 20.12.2003 delivered by the learned Additional Sessions Judge -II, Kangra at Dharmshala in Sessions case No. 11 -N/2001 whereby he acquitted the respondent -accused of having committed offences punishable under Sections 376/ 511 IPC. The first report with regard to the incident was made by the prosecutrix to the police official at Tanda Mour on 11.9.2000. In this statement of the prosecutrix recorded under Section 154 Cr.P.C. she alleged that all her family members had gone out of the house on the said date. Her brother and sisters had gone to the school but she had left studies. She was alone at home alongwith accused Raj Kumar who is the husband of her father's sister. Her mother had gone to Mukerian alongwith her brother. At about 12 noon the accused closed the gate which was affixed on the boundary wall outside the house. She asked him why he was closing this gate because this was normally open during day hours. However, the accused after closing the gate bolted the same and caught hold of the prosecutrix by her arm. She raised an alarm but he closed her mouth with one hand. He dragged her inside a room and forced her to lie down on a bed. He broke the Narah of her Salwar and had forcible sexual intercourse with her. After the accused had sexually assaulted the prosecutrix she knotter her Salwar since the Narah was broken. The prosecutrix then jumped over the wall and met Prakash and Dass Ram and told them what had happened. The accused in the meantime fled away. Prakash and Dass Ram accompanied her to her house and at about 4.30 p.m. her mother came home and she informed her mother about what had happened. The prosecutrix and her mother then came to the police post to lodge the report. Thereafter, the prosecutrix was medically examined. The police carried out other investigation and the accused was challaned and charged with having committed the offences aforesaid. The learned trial Court acquitted the accused. Hence, this appeal by the State.

(2.) AT the outset, we may state that it appears that this is not a case of rape. In this regard, we may make reference to the statement of PW -1 Dr. Neerja Gupta, who examined the prosecutrix on 11.09.2000 itself. She did not find any marks of injury on any portion of the body of the prosecutrix. She found no seminal stains nor any marks on the private parts. She came to the conclusion that the prosecutrix was not used to sexual intercourse.

(3.) THE prosecutrix appeared in the witness box and stated that after the accused had untied the Narah of her Salwar he did "galat kam" with her. A suggestion was put to her on behalf of the accused that in order to save herself from the clutches of the accused she offered strong resistance when the accused put his hand on her mouth and sustained injuries on the lips. In cross -examination she has stated that the accused fondled her breast but she did not suffer any injury on her breast. She has talked about the penetration of the penis of the accused into her vagina and she also states that the accused ejaculated inside her vagina and the semen spread on her Salwar and on her thighs. This story is totally unbelievable because of the reports of the doctor and the chemical examiner. However, the accused does not deny his presence at home and a suggestion has been put to the prosecutrix that she resisted when the accused tried to catch hold of her.