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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA, AT SHIMLA
P.S. Rana, J.
Kuldeep Thakur - Appellant
Vs.
State of Himachal Pradesh - Respondent
Cr. Appeal No. 01 of 2013
Decided On : 20-5-2015
Rape - Minor Prosecutrix - IPC 363, 366-A, 376 - The court convicted the appellant under Sections 363 and 376 IPC and acquitted him under Section 366-A IPC. The court awarded rigorous imprisonment for a period of three years and seven years for the respective offences. The court found the testimony of the minor prosecutrix to be trustworthy and reliable, and there was no reason to disbelieve her. The court also held that the consent of the minor was immaterial as per Section 375 IPC. The court rejected the appellant's submissions regarding tampering in the FIR, prior enmity, and the need for corroboration of the prosecutrix's testimony.
Fact of the Case:
The prosecutrix, a 14½-year-old girl, was allegedly persuaded by the appellant to accompany him to various places, where he committed forcible sexual intercourse with her. The prosecutrix was found at Bhunter along with the appellant, and the medical examination confirmed sexual assault.
Finding of the Court:
The court found the testimony of the minor prosecutrix to be trustworthy and reliable, and there was no reason to disbelieve her. The court also held that the consent of the minor was immaterial as per Section 375 IPC. The court rejected the appellant's submissions regarding tampering in the FIR, prior enmity, and the need for corroboration of the prosecutrix's testimony.
Issues: The issues included the credibility of the prosecutrix's testimony, the applicability of Section 375 IPC regarding consent, and the admissibility of evidence such as the birth certificate and school certificate.
Ratio Decidendi: The court relied on the testimony of the minor prosecutrix, the medical examination, and the documentary evidence such as the birth certificate and school certificate to convict the appellant. The court also emphasized the immateriality of the minor's consent as per Section 375 IPC.
Final Decision: The appeal filed by the appellant was dismissed, and the judgment and sentence passed by the trial court were affirmed. The court held that there was no miscarriage of justice in the case.
Present appeal is filed against the judgment and sentence passed by learned Sessions Judge Mandi in Sessions Trial No 38 of 2011 titled State vs. Kuldeep Thakur and another decided on dated 28.6.2012 and quantum of sentence announced on dated 29.6.2012.
Brief facts of the case as alleged by the prosecution:-
2. It is alleged by the prosecution that on dated 2.2.2011 prosecutrix left her home in order to attend Government Senior Secondary School Chowk where she was studying. It is alleged by prosecution that age of prosecutrix was 14½ years. It is alleged by prosecution that prosecutrix did not come back and her father inquired about prosecutrix from her relatives. It is also alleged by prosecution that one Ishwar Dass noticed the prosecutrix in Baba bus which was enrouted to Kullu and on dated 4.2.2011 prosecutrix was found at Bhunter along with co-accused Kuldeep and thereafter prosecutrix and coaccused Kuldeep were brought to police station Sarkaghat and FIR Ext.PW3/A was registered. It is alleged by prosecution that on dated 2.2.2011 co-accused Kuldeep met the prosecutrix and pursuaded the minor prosecutrix to go to Rewalsar and also pursuaded the minor prosecutrix to throw away her school bag. It is alleged by prosecution that thereafter prosecutrix accompanied co-accused Kuldeep to Rewalsar in private bus namely Baba bus service and thereafter accused took the prosecutrix to Kullu. It is alleged by prosecution that co-accused Kuldeep expressed his desire to marry the prosecutrix and took the minor prosecutrix to village Kharahal in the house of coaccused Hari Singh. It is alleged by prosecution that co-accused Kuldeep committed forcible sexual intercourse with minor prosecutrix in the house of co-accused Hari Singh in the night of dated 3.2.2011. It is alleged by prosecution that Investigating Officer moved application Ext.PW9/A and requested the medical officer CHC Sarkaghat to conduct medical examination of prosecutrix. It is alleged by prosecution that no lady doctor was available in hospital CHC Sarkaghat and thereafter minor prosecutrix was forwarded to Zonal Hospital Mandi where PW9 Dr. Renu conducted the medical examination of minor prosecutrix and medical officer opined that age of prosecutrix was between 14 to 16½ years. It is alleged by prosecution that accused was also medically examined and MLC of accused Ext.PA was obtained. It is alleged by prosecution that birth certificate of prosecutrix from family register was also obtained. It is alleged by prosecution that date of birth of minor prosecutrix is dated 11.12.1996 and birth certificate of prosecutrix is Ext.PW1/C. It is alleged by prosecution that father of prosecutrix produced the photocopy of middle standard certificate of minor prosecutrix which was took into possession vide seizure memo Ext.PW2/A. It is alleged by prosecution that attendance certificate of minor prosecutrix from school was obtained and copies of school admission and withdrawal certificate were also obtained. It is alleged by prosecution that spot map Ext.PW11/C was prepared and room of co-accused Hari Singh where co-accused Kuldeep committed forcible sexual intercourse upon minor prosecutrix was located and prosecutrix identified blanket Ext.P2 which was took into possession vide seizure memo Ext.PW11/D. It is alleged by prosecution that case property was deposited in malkhana and entry was recorded in malkhana register at Sr. No. 1225/11 and abstract of malkhana register is Ext.PW5/A. It is alleged by prosecution that case property was sent to FSL Junga through PW3 Nanak Chand vide RC No. 49 of 2011 and further alleged that DNA profiling was conducted and report was obtained.
3. Learned trial Court on dated 7.9.2011 framed the charge against co-accused Kuldeep under Sections 363, 366-A and 376 IPC and learned trial Court framed the charge against co-accused Hari Singh under S
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