Point of Law : Appellant cannot take benefit from this admission of PW-7 for the simple reason that the injuries suffered by the victim on her breast could be caused by more than one reason and it was nowhere suggested to PW-7 that such injuries could not be caused as a result of sexual assault of the victim.

JUDGMENT :

Satyen Vaidya, J.

By way of instant appeal, appellant has assailed the judgment and sentence dated 29.5.2019/6.7.2019, passed by learned Special Judge, Kangra at Dharmshala, in Sessions Case No. S.C. No. 47-G/VII/16, RBT No. 61-G/VII/17/16, whereby appellant has been convicted for commission of offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/- and to further undergo rigorous imprisonment for one year in default of payment of fine. In addition, the victim has also been awarded lump sum compensation of Rs. 6,00,000/- to the victim.

2. The case as set up by prosecution was that on 26.7.2016, Anjana Devi (PW-1) (hereafter referred to as complainant) reported a crime at Police Post, Ranital vide daily dairy No. 11 (Ext. PW-12/A), alleging inter-alia that the victim was her daughter. On 25.7.2016, the mother of complainant had paid a visit to the house of complainant. At about 2.00 PM, she in the company of the victim and Nishant (son of complainant) went towards the bus-stop. Both the children (victim and her brother) reached back home at about 4.15 P.M. The victim was weeping and on inquiry by complainant, she disclosed that the appellant had also accompanied them till the bus-stop. On their way-back appellant had caught hold of her and dragged her towards water source downwards from the road and had further gagged her mouth at place near “Dhuri-ka-Nalla”. Appellant had then undressed her and had thereafter indulged in “Galat Kaam” with her. Nishant had pelted stones at the appellant. Despite her resistance; appellant had not budged. On this disclosure, the complainant had gone in search of appellant but he did not respond and absconded from his house. Appellant had raped her minor daughter. She could not lodge the report the previous day, as firstly she remained searching for the appellant and thereafter remained busy in a function of her nephew and also kept searching for the President of the Gram Panchayat.

3. On the basis of aforesaid report, FIR Ext. PW-18/A was registered at Police Station, Haripur and investigation was initiated. Statement of victim under Section 161 Cr.P.C. was recorded in the first instance. Later, on 29.7.2016 her statement under Section 164 Cr.P.C. (Ext. PW-2/A) was also recorded by learned Judicial Magistrate at Dehra. The victim was medically examined on 26.7.2016 at CHC Jwalamukhi. PW-7 Dr. Kanika examined the victim and issued MLC Ext. PW-7/B. Relevant extract of MLC read as under :-

“on external examination : multiple bruises (reddish blue) in colour present on both the breast.”

Internal examination: no injuries present on the perineal region. On separation of thighs no abrasion present at time of examination. No bleeding P/V present.”

Per speculum: hymen torn, the redness present at vaginal opening.”

Final opinion was rendered by PW-7 on 19.10.2016 as under:-

“However, the possibility of sexual assault cannot be ruled out”

4. During investigation, the date of birth of victim was found as 10.4.2005. The appellant, who had absconded, was arrested on 4.8.2016. The report from Regional Forensic Laboratory, Dharmshala, Ext. PY was received. On completion of investigation report under Section 173 Cr.P.C. was submitted.

5. Learned Special Judge, Kangra at Dharmshala framed charge against the accused under Section 6 of POCSO Act, 2012, to which appellant pleaded not guilty and claimed trial.

6. Prosecution examined total 20 witnesses to prove its case. Appellant was examined under Section 313 Cr.P.C. He raised the defence of false implication on account of enmity with the complainant. Appellant did not lead any defence evidence.

7. We have heard learned counsel for the parties at length and also examined the record carefully.

8. The fact that the victim was less than 12 years of age was duly proved on record. Birth certificate of victim, Ext. PW- 8/B, w