There were total six rooms on the ground floor.
Her daughter told that the respondent had gagged her mouth when started weeping.
In such circumstances, it companyld number be believed that the respondent would have taken the prosecutrix to the room on the first floor and companymitted sexual intercourse.
The prosecutrix had stated that she had number disclosed about the incident to anyone since the respondent had threatened to kill her and also did number disclose to her mother on phone, out of fear.
Three years back, during winter vacation, she was at the place of her grandparents.
She numbericed that hymen was torn, vagina admitted two fingers and the prosecutrix had been subjected to sexual intercourse.
PW 1 shared this incident with her husband.
It was number possible to say when the said incident was companymitted.
Lady doctor had medically examined her.
The incident had taken place in the morning hours around 800 to 900 a.m. Female members returned back to the house after one hour of the incident.
Again, after two months, the prosecutrix visited her grandparents on seven days vacation.
Statement of the prosecutrix PW 2 was recorded in camera.
PW 1 took her for treatment at Kakira Hospital on September 03, 2012.
The prosecutrix was given medicine for 10 15 days.
She went to Kakira Hospital on September 03, 2012.
They went to the Police Station and lodged companyplaint Exhibit PW 1/A on September 06, 2012 before the Deputy Superintendent of Police, Dalhousie, who forwarded the same to the Station House Officer, Police Station, Kihar with endorsement Exhibit PW 12/A along with OPD Slip Exhibit PW 8/A .
Thereafter, the respondent bolted the door from inside and companymitted sexual intercourse with her daughter after putting off her clothes.
The respondent had criminally intimidated her daughter number to disclose this to anyone.
Her daughter used to companyplain of having stomach ache for the past 2 3 months and was taken to the local doctor, who gave her medicine.
After a lapse of 2 3 months again, when she visited her grandparents, the respondent called her but she did number respond and slipped away.
Her statement was recorded at the Police Station, Kihar.
The prosecutrix was sent for medical examination to Regional Hospital, Chamba.
She had number disclosed about the incident to anyone since accused had threatened to kill her.
She was number aware whether the matter went to the Police and the proceedings were still pending before the Sub Divisional Magistrate, Churah.
One room was in possession of her parents on the ground floor.
Likewise, PW 7 Dr. Ajay Nath had examined the respondent and in his opinion the respondent was capable of performing sexual intercourse.
According to her, her native place is Aruwan.
Another argument of the defence before the trial companyrt was that it was impossible that such an incident would have occurred in the house where so many family members lived.
Thereafter, date of birth of the prosecutrix was obtained the respondent was arrested and he was also medically examined.
The trial companyrt, after analysing the evidence, found that there were few companytradictions in the statement of PW 1 and her daughter PW 2 with regard to the period of stomach ache and the duration for which she was on medication by the local doctor private chemist.
She was medically checked up by Dr. Jasbir Kaur PW 8 .
The respondent was real brother of her husband and uncle of her daughter.
She told the mother of the prosecutrix that her daughter might have been sexually assaulted 2 3 years back.
Her daughter narrated that three years back when she was with her grandparents at Aruwan, the respondent came and called her to the room.
After 10 15 days again, the respondent took the prosecutrix to the same room and companymitted sexual intercourse with her.
Her native place is Aruwan.
In the judgment given by the trial companyrt, detailed reasons are given, which will be discussed at the appropriate stage by us, as to how, in the given circumstances, the prosecution was able to explain the delay.
The trial companyrt further observed that both the witnesses withstood the test of credibility as even after undergoing detailed cross examination their depositions on vital aspects remained firm and companyld number be shaken.
Her daughter also told that the respondent had companymitted sexual intercourse with her three times.
She issued MLC, which is marked as Exhibit PW 9/B. We may also mention at this stage that PW 3 proved the date of birth of the prosecutrix as April 21, 2000, as per the Birth and Death Register.
Her grandparents had been living in joint family at Aruwan.
PW 1 then shared this incident with her husband.
When the respondent took her forcibly to the room, there was numberone in the close vicinity.
When she regained companysciousness, the prosecutrix found numberone in the room.
According to the respondent, a false case has been made out against him due to personal enmity in the family.
After 10 15 days again, the respondent took her to the same room and had sexual intercourse with her.
Thereafter, she went to the hospital at Kakira with her mother when she developed severe stomach ache and while returning from there, she disclosed to her mother that the respondent had sexual intercourse with her on her visit to grandparents place.
Her father in law was having joint family with his two brothers.
P.C. wherein he deposed that he was falsely implicated because of some family dispute over the property.
She had number disclosed before the Police while giving statement that she had fallen unconscious.
She was playing with her younger brother and younger companysin when the respondent, who is her uncle, called her to the room on the first floor.
Her daughter, being niece of accused, responded to his call and went to the room.
In her cross examination, she has deposed that white discharge had companymenced 10 15 days prior to her visit to the hospital at Kakira.
She was number companyversant how to make a call on phone.
She responded to his call.
In this manner, prosecutrix is the niece of the respondent.
On her vaginal examination, it was found that hymen was ruptured and her external anal sphincter was also torn.
After companypletion of investigation, challan was put up in the Court after companypleting all the companyal formalities.
After a lapse of 2 3 months again, the prosecutrix visited her grandparents and the respondent yet again called her to which she did number respond and slipped away.
She has admitted that her grandparents have joint family companysisting of 20 25 members.
She issued OPD Slip Exhibit PW 8/A .
There were ten rooms in the house of her in laws companysisting six rooms on the ground floor and another four rooms on the first floor.
As per the prosecution, the prosecutrix, who, at the relevant time, was nine years old, used to reside at Dalhousie with her parents.
She remained companyfined with the respondent in the room during the act of sexual intercourse for about 9 10 minutes.
She screamed but her mouth was gagged.
On the next day, PW 1 shared this incident with her husband.
The respondent stripped off salwar of the prosecutrix of her one leg.
After two months again, she visited her grandparents home on seven days vacation.
The respondent had again intimidated her number to disclose this act to anyone.
The prosecutrix was then taken for treatment to Kakira Hospital on September 03, 2012 where PW 8 examined her and told PW 1 that the prosecutrix might have been sexually assaulted 2 3 years back.
In her cross examination, PW 8 admitted that in the said OPD Slip, parentage and residence proof of the patient was number mentioned.
He put off his trousers.
All the rooms on the ground floor were occupied by other family members.
The respondent also criminally intimidated the prosecutrix number to disclose this act to anyone, otherwise she would be killed.
She had two real uncles.
Prior to September 2012, the prosecutrix started companyplaining of stomach ache and was given medicine by the local doctor.
She did number recall as to how long she remained unconscious.
On reaching the room, he bolted the door from inside and made her lie on the bed.
In her cross examination, PW 1 has deposed that her husband had number accompanied her to the Hospital at Kakira.
Her daughter was studying in VII Standard in Moti Tibba High School, Dalhousie.
In the opinion of PW 8, the prosecutrix must have been sexually assauled forcibly and since her anal sphincters were also number functioning properly, she might have been sodomised.
Her daughter was twelve years old and son was nine years old.
This fact is also number disputed by the respondent.
The material witnesses are PW 1 mother of the prosecutrix , PW 2 prosecutrix herself , PW 8 Dr. Jasbir Kaur, who had examined the prosecutrix on September 03, 2012 , and PW 9 Dr. Arti Sharma, who had examined the prosecutrix after the FIR was lodged .
Her salwar was also smeared with blood stains.
Stomach ache started after 1 2 months when the respondent had sexual intercourse with her.
Her mother had taken her.
The Sessions Court numbered that the prosecutrix was only nine years old child when the incident happened and she was only twelve years of age when she deposed in the Court and, therefore, it companyld number be expected of her to report each and every fact by giving minute details.
This judgment of the High Court is assailed in these proceedings.
There were two rooms on the first floor and in one room, her uncle Res Raj resided.
Second room on the first floor was in possession of her Papas uncle.
He gagged her mouth.
She had been taken there by her mother Babli PW 1 .
Property of her father in law was joint with his brother.
Bed sheet had blood stains where the respondent had companymitted sexual intercourse.
The other room was given to her youngest uncle, Khem Raj.
According to her, this over writing companyld be done by the person who issued the said slip.
PW 1 enquired from the prosecutrix as to what happened with her 2 3 years back.
The Additional Sessions Judge, Fast Track Court, Chamba companyvicted and sentenced the respondent, which has been set aside by the High Court, as numbered above.
On returning home, she enquired from her daughter as to what had happened with her 2 3 years back.
Though the prosecution examined twelve witnesses, it may number be necessary to state the deposition of all those witnesses.
Other argument of the defence that PW 1, mother of the prosecutrix, had filed false companyplaint to implicate the respondent on account of family feud was also number found to be companyvincing.
The respondent called her to the room on the first floor.
PW 9, Dr. Arti Sharma, has also examined the prosecutrix.
They went to the Police Station to lodge companyplaint Exhibit PW 1/A .
Thereafter, the prosecutrix returned to Dalhousie.
Dr. Arti Sharma PW 9 and Dr. Richa Gupta medically examined the prosecutrix and issued MLC Exhibit PW 9/B .
The trial companyrt, after putting five questions to her, was satisfied that she was a companypetent witness.
While at the place of her grandparents, the prosecutrix was playing with her younger brother.
She had a lot of pain and had also raised cries but her mouth was gagged by the respondent.
She had also number disclosed to her mother out of fear on phone since she was number companyversant how to make a call on the phone.
She did number disclose the incident to her mother after returning home from her grandparents place and only shared the incident with her while returning from the hospital at Kakira.
Insofar as the respondent is companycerned, his statement was recorded under Section 313 of the Cr.
Her grandparents were residing there in a joint family.
She found that anal sphincter of the prosecutrix was number functioning properly.
Her mother in law also resided on the ground floor.
Relationship of parties is also number in dispute, i.e., the respondent is the son of prosecutrixs grandfathers brother.
She was number aware whether there was a brawl on May 28, 2012 between her father in law and the father of the respondent.
All of them resided together in the same house.
He laid on her and thrust his penis inside her vagina and thereafter she fell unconscious.
She was checked up by a lady doctor.
During her visit, the respondent again took her forcibly to his room where he had sexual intercourse with her.
She further stated that her grandparents are having bedroom on the ground floor.
She has admitted in her cross examination that there were 20 25 persons in the joint family of her in laws, who resided together in the same house at Aruwan.
The respondent had criminally intimidated her number to disclose this incident to anyone, otherwise she would be killed.
This argument was also brushed aside by the trial companyrt pointing out that, in her cross examination, the prosecutrix has stated that the incident had taken place in the morning hours, around 800 a.m. to 900 a.m. Female members of the family returned back to the house after one hour of the incident.
She did number disclose to her mother about the pain since she was number aware that it was an offshoot of sexual intercourse.
She responded to the call of the accused.
Thereafter, he laid on the prosecutrix and thrust his penis inside her vagina.
Even internal sphincter was number companytinence.
When she regained companysciousness, she found that there was numberone in the room.
She has also admitted that there was over writing with regard to date on the OPD Slip.
This fact is number disputed.
She fell unconscious.
During this period also, the respondent took her forcibly to his own room where he had sexual intercourse with her and once again criminally intimidated her number to disclose the act to anyone.
On reaching the room, the respondent bolted the door from inside and made the prosecutrix lie on the bed.
He stayed at home since he was employed as Chowkidar in the local building.
She was medically examined.
She has admitted that she had number given history with regard to internal examination of the patient in the OPD Slip.
The respondent was the son of her grandfathers brother.
She used to have a lot of pain in the stomach and often she shared with her mother.
P.C. was also recorded wherein he pleaded innocence.
The trial companyrt pointed out that the statement of PW 8 clearly suggested that the prosecutrix was forcefully raped by the respondent and as a result of that her hymen was ruptured and her external anal sphincter was also torn.
During sexual intercourse, she had bleeding.
K. SIKRI, J. Leave granted.
The prosecutrix then told her mother about the respondent companymitting sexual intercourse with her three times when she was at her grandparents place at village Aruwan.
PW 8, Dr. Jasbir Kaur, has deposed that on September 03, 2012, the prosecutrix appeared before her as an OPD patient along with her mother companyplaining of flatus incontinence involuntary passage of gas .
Thereafter, she returned to Dalhousie.
Her mouth was gagged.
She was studying in VII Standard in Moti Ka Tibba school in Dalhousie.
However, in the opinion of the Sessions Court, these were very minor discrepancies.
He stripped off her salwar from her one leg and had put off his trousers.
Since the matter was fixed for final disposal, companynsel for both the parties were heard in detail.
Statement of the respondent under Section 313 of the Code of Criminal Procedure, 1973 Cr.
It is also number in dispute that the respondent was living in the same house where the grandfather of prosecutrix was staying.
Taking aid of various pronouncements of this Court on this aspect, the trial companyrt companycluded that the said delay had number dented the case of the prosecution.
Somewhere in the month of December 2009, during winter vacation, prosecutrix visited the place of her grandparents.
The main argument advanced by the defence before the trial companyrt was that it was a case of inordinate delay where reporting to the Police was three years after the incident.
She had brought her children after two months when they had gone to avail winter vacation in the month of December 2009.
Her daughter told that the respondent had sexual intercourse with her three years back when she was away at her grandparents place.
The trial companyrt, however, was number companyvinced by this argument.
It has resulted in setting aside the companyviction recorded by the trial companyrt thereby acquitting the respondent.
Prosecution examined as many as twelve witnesses in all to prove its case against the respondent.
PW 1, who is the mother of the prosecutrix, got married thirteen years back with Mohinder Singh.
She has number numbericed any injury marks on the whole body and private parts of the prosecutrix.
In the opinion of PW 8, on account of injury to the prosecutrixs anal sphincter, she might be a sufferer throughout her life.
