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IN THE HIGH COURT OF HIMACHAL PRADESH
Dharam Chand Chaudhary, Chander Bhusan Barowalia, JJ.
Nikka Ram – Appellant
Vs.
State of H.P. – Respondent
Criminal Appeal No. 321 of 2017
Decided On : 05-01-2019
POCSO Act - Sexual Assault - Section 376 IPC, Section 6 of POCSO Act - 375, 5, 3 - The court acquitted the accused of the charge under Section 376 IPC and Section 6 of the POCSO Act, but convicted him for the offence of sexual assault punishable under Section 8 of the POCSO Act. The accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000.
Fact of the Case:
The accused was convicted for the commission of offence punishable under Section 376 of the Indian Penal Code and Section 6 of The Protection of Children from Sexual Offences Act, 2012. The victim, a minor, alleged that the accused had sexually assaulted her on multiple occasions. The accused denied the allegations and claimed that he was falsely implicated.
Finding of the Court:
The court found that the evidence did not prove the accused guilty of the charges under Section 376 IPC and Section 6 of the POCSO Act. However, the evidence established the commission of the offence of sexual assault punishable under Section 8 of the POCSO Act. The court also noted that the accused had threatened the victim with dire consequences, leading to his conviction under Section 506 of the Indian Penal Code.
Issues: The main issue was whether the accused was guilty of the charges under Section 376 IPC and Section 6 of the POCSO Act, and whether the evidence supported the victim's allegations of sexual assault.
Ratio Decidendi: The court held that the evidence did not sufficiently establish the accused's guilt under Section 376 IPC and Section 6 of the POCSO Act, but did establish the offence of sexual assault under Section 8 of the POCSO Act. The court also considered the accused's threat to the victim, leading to his conviction under Section 506 of the Indian Penal Code.
Final Decision: The accused was acquitted of the charges under Section 376 IPC and Section 6 of the POCSO Act, but was convicted for the offence of sexual assault punishable under Section 8 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000.
Dharam Chand Chaudhary, J.
Convict Nikka Ram (hereinafter referred to as the 'accused') has preferred this appeal against the judgment dated 16/29.12.2016 passed by learned Special Judge, Shimla in Sessions Trial No. 30-S/7 of 2015, whereby he has been convicted for the commission of offence punishable under Section 376 of the Indian Penal Code and Section 6 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act' in short) and while holding that the punishment under Section 6 of the POCSO Act is greater in degree as compared to the punishment under Section 376 IPC, has convicted him to undergo rigorous imprisonment for a period of 12 years under Section 6 of the POCSO Act and also to pay Rs.1,00,000/- and simple imprisonment for a period of three months for the commission of offence punishable under Section 506 IPC.
2. The accused has been tried, convicted and sentenced for the commission of offence stated hereinabove with the allegations that he belongs to village Sawala and the child victim (name withheld) allegedly aged about 12 years ravished by him 13-14 days prior to 3.8.2015 at Siyalta Nallah is also the resident of same village. Prior to that also, she was subjected by him to sexual intercourse on 3-4 occasions. It is on 3.8.2015, in the evening she disclosed about her ravishment sexually by the accused to her mother PW-2. She disclosed that accused had been taking her to Siyalta Nallah and ravished her sexually there on 3-4 occasions by removing her clothes. He allegedly had been paying Rs.10/- and giving some toffees to her on such occasions. He had been alluring her at the pretext of giving more money. When she told him that she will disclose her ravishment by him to her parents, he threatened to expose her in eyes of the school teachers and students. According to PW-2 and also PW-1, the parents of the victim, apprehending that their daughter, the victim may not be telling lie and to rule-out the false implication of the accused, asked from her repeatedly about the correctness of the disclosure she made against him, but she remained firm on the facts she disclosed. Therefore, PW-1 and PW-2 went to police station, Nerwa, Tehsil Chopal, District Shimla. The victim also went there with them. The father of the victim PW-1 has made an application Ext.PW-1/A to the Station House Officer, Police Station, Nerwa stating whatever the victim disclosed therein. On the basis of application Ext.PW-1/A, FIR Ext.PW-14/A was registered.
3. The investigation was conducted by SI/SHO Narinder Singh PW-14. An application Ext.PW-6/A was made to the Medical Officer, Civil Hospital, Nerwa for getting the medico legal examination of the victim conducted, however, no female doctor was available at Nerwa on that day, therefore, the child victim was referred to D.D.U. Zonal Hospital, Shimla for her medical examination. She was examined by PW-8 Dr. Shalini Bhardwaj, who issued MLC Ext.PW-8/A. The I.O. visited the spot on 4.8.2015 itself and prepared the spot map Ext.PW14/C. The spot was videographed and photographed vide CDs mark X-1 to X-3. The statement of child victim Ext.PW-14/B was recorded as per her version. An application Ext.PW-14/E was made to JMIC, Chopal, District Shimla with a prayer to record the statement of child victim under Section 164 Cr.P.C. An application Ext.pW-5/A was submitted to the Headmaster, Government Middle School, Sawala for supplying the date of birth certificate of the child victim. Certificate Ext.PW-5/B was prepared and signed by the Headmaster of the school. The copy of admission and withdrawal register Ext.PW-5/C was also obtained from the school. All these documents were taken in possession by the police vide recovery memo Ext.PW5/D. The I.O. had also made an application Ext.PW-7/A to the Secretary, Gram Panchayat, Pujarali Block Chopal, District Shimla for supply of certificate of date of birth of the child victim from the birth register. PW-7 Smt. Sh
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