M.R.SHAH, J. -
(1.)Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.09.2016/19.09.2016 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal No. 36 of 2014, by which the High Court has allowed the said appeal preferred by the State and has quashed and set aside the judgment and order of acquittal passed by the learned trial Court acquitting the appellant herein - original accused for the offences under Sections 376 and 506 of the IPC and consequently has convicted the appellant - accused for the aforesaid offences and has sentenced him to undergo seven years R.I. with fine of Rs. 10,000/- and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine of Rs.5,000/- and in default of payment of fine, further three months R.I. under Section 506 IPC, the original accused has preferred the present appeal.
(2.)The facts leading to the present appeal in nutshell are as under:
That the father of the prosecutrix lodged an FIR against the accused with the allegations that on 1.4.2008, his wife Dhaneshwari Devi telephonically informed him at Shimla that their daughter (prosecutrix) is pregnant. It was alleged that the prosecutrix told her mother that when she used to go to jungle to graze goats and cattle, accused also used to go to jungle to graze cattle and goats. The prosecutrix told her mother that three-four months ago, accused had sexual intercourse with her forcibly and without her consent. That the accused threatened the prosecutrix not to disclose the incident to anyone. That due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. That the prosecutrix was got medically examined and as per the Medical Officer the prosecutrix was carrying a pregnancy of 31 weeks. Her age was stated to be 19 years. Prosecutrix was alleged to be mentally retarded. She was medically examined at IGMC, Shimla as well as PGI, Chandigarh. Prosecutrix gave birth to a female child on 19.6.2008 at KNH, Shimla. Blood samples of the prosecutrix, the baby and the accused were taken for DNA test. As per report, accused was the biological father of the female child. The accused was arrested. After completion of the investigation, the Investigating Officer submitted the chargesheet against the accused for the offences under Sections 376 and 506 IPC. The accused pleaded not guilty and therefore he came to be tried by the learned trial Court for the aforesaid offences.
2.1 To prove the case against the accused, the prosecution examined as many as 23 witnesses including the parents of the prosecutrix (PW 1 and 2), Prosecutrix (PW3), Laboratory Technician - Jitender Kumar (PW8), Dr. Sarla Chand (PW9), Dr. Rakesh Kumar, Radiologist (PW10), Dr. Ramesh Kumar, Assistant Professor, Department of Psychiatry (PW11), Dr. Jeeva Nand Chauhan (PW12), Nand Singh, Sr. Lab Technician, KNH, Shimla (PW13), Dr. Monika Sharma (PW14), ASI Takpa Dorje (PW17), SI Sunder Singh (PW19), Dr. Rama Malhotra, PGI, Chandigarh (PW22) and other witnesses. That after closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The learned trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.
(3.)Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned trial Court, the State preferred appeal before the High Court and by the impugned judgment and order and on re-appreciation of the entire evidence on record, more particularly the medical evidence, the High Court has reversed the order of acquittal and has convicted the accused for the offences under Sections 376 and 506 IPC by observing that the prosecutrix was not in a position to understand the good and bad aspect of the sexual assault. On re-appreciation of the entire evidence on record, the High Court came to the conclusion that the IQ of the prosecutrix was 62 and that she had mild mental retardation.