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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sabina, Sushil Kukreja, JJ.
Subhash Chand @ Bhashu - Appellant
Versus
State of H.P. – Respondent
Criminal Appeal No.578 of 2019
Decided On : 13-12-2022
Protection of Children from Sexual Offences Act, 2012 - Section 9(m) and 10 – Indian Penal Code,1860 - Sections 376 and 506 - Criminal Procedure Code,1973 - Section 164 and 374 (2) – Offence of Rape – Criminal intimidation – Charged - Case are that on receipt of a telephonic information from complainant (name withheld) at Police Station Baijnath, regarding committing of rape of her daughter by accused, Inspector/SHO Kamal Kant, Investigating Officer, alongwith other police officials went to village (name withheld) and at spot, he recorded statement of complainant, wherein she had stated that at about 8:00 a.m., when she left for work in nearby area, her youngest daughter i.e. child victim was alone in house as her other two daughters had gone to Barot to house of her parents and when she returned home in evening at about 6:15 p.m child victim told her that in the morning after she (complainant) left house, while she was sitting on entrance (Deodi) of house, accused came there, dragged her inside to room of house and committed wrongful act with her and thereafter threatened to kill her if she disclosed incident to anyone - Whether there was any likelihood of false implication or motive of false accusation - Since evidence on record shows that accused had touched the private part of the child victim with his private part with sexual intent and same involved physical contact without penetration, hence, accused had committed sexual assault on child victim within definition of sexual assault as per Section 7 of Act.
Finding of Court :
Mother of child victim, while appearing on witness-box as PW-4, disclosed that at relevant time, age of child victim was 11 years - PW-5, then Up-pradhan of Gram Panchayat, stated that as per birth entry recorded in register Ext. PW5/A, date of birth of child victim was recorded - PW-11, then Secretary of Gram Panchayat, deposed that he had issued date of birth certificate of child victim Ext. PW11/B as per record and as per this certificate, date of birth of the child victim - Perusal of date of birth certificate of child victim Ext.PW11/B shows that her date of birth - Date of occurrence , meaning thereby that at time of the occurrence, age of child victim was about 10 years and 8 months and, as such, she was below 12 years of age at time of incident - As per Section 9(m) of Act, whoever commits sexual assault on a child below twelve years will come under definition of aggravated sexual assault - Perusal of entire evidence on record shows that accused had committed aggravated sexual assault on child victim within definition of Section 9(m) of Act punishable under Section 10 of Act.
Result : Appeal is disposed of
JUDGMENT :
(Sushil Kukreja, J.)
1. The instant appeal filed under Section 374 (2) of the Code of Criminal Procedure, lays challenge to judgment of conviction dated 31.08.2019 and order of sentence dated 23.09.2019, passed by the learned Special Judge, Kangra at Dharamshala, in R.B.T No.57-B/VII/19/2016, titled State of Himachal Pradesh Versus Subhash Chand alias Bhashu, whereby the appellant/accused was convicted for commission of the offence under Section 9(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’) and Section 506 of the Indian Penal Code (for short, ‘IPC’) and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- (rupees fifty thousand only) and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year for commission of the offence under Section 6 of the Act and he was further sentenced to undergo imprisonment for six months under Section 506 of IPC.
2. Briefly stated the facts of the case are that on 14.07.2016, on receipt of a telephonic information from the complainant (name withheld) at Police Station Baijnath, regarding committing of rape of her daughter by the accused, Inspector/SHO Kamal Kant, the Investigating Officer, alongwith other police officials went to village (name withheld) and at the spot, he recorded the statement of the complainant, wherein she had stated that on 14.07.2016 at about 8:00 a.m., when she left for work in the nearby area, her youngest daughter i.e. child victim was alone in the house as her other two daughters had gone to Barot to the house of her parents and when she returned home in the evening at about 6:15 p.m., the child victim told her that in the morning after she (complainant) left the house, while she was sitting on the entrance (Deodi) of the house, the accused came there, dragged her inside to the room of the house and committed wrongful act with her and thereafter threatened to kill her if she disclosed the incident to anyone.
3. On the basis of the statement of the complainant, FIR No.96, dated 14.07.2016, was registered against the accused at Police Station Baijnath, District Kangra, H.P., under Section 4 of the Act and Sections 376 and 506 of IPC.
4. During investigation, the statement of the child victim was recorded and the Investigating Officer also moved an application before Ld. JMIC, Baijnath for recording the statement of the child victim under Section 164 Cr.P.C., consequently the statement was recorded. The Investigating Officer prepared the site plan of the spot, recorded statements of the witnesses and also got the child victim as well as the accused medically examined.
5. On the completion of the investigation and receipt of the RFSL report, the Investigating Officer submitted the charge-sheet to the then SHO Duni Chand, who presented the charge-sheet as well as the supplementary charge-sheet in the Court.
6. Vide order dated 29.08.2019, charge was framed by the learned trial Court against the accused under Section 9(m) punishable under Section 6 of the Act and Section 506 of IPC, to which, the accused did not plead guilty and claimed trial.
7. In order to prove its case, the prosecution examined as many as 20 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded that as he stood surety for father of the child victim in a criminal case and when her father jumped over the bail, he used to visit the house of the child victim in search of her father, the mother of the child victim used to threaten him not to search her husband, otherwise she would rope him in a false case. However, the accused did not examine any witness in his defence.
8. On the basis of evidence led on record by the prosecution, the learned trial Court convicted the accused, vide the impugned judgment and sen
As per Section 9(m) of Act, whoever commits sexual assault on a child below twelve years will come under definition of aggravated sexual assault.
The main legal point established in the judgment is the importance of considering the testimony of the victim in cases of sexual assault, the application of statutory presumptions under the Act, and ....
The sole testimony of a child victim can suffice for conviction if credible, and age determination must rely on conclusive evidence such as school records.
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumptio....
The central legal point established in the judgment is the immateriality of the minor victim's consent in a rape case and the lack of requirement for corroboration in cases of sexual assault when the....
The victim's testimony in sexual assault cases is vital and can suffice for conviction without corroboration, provided it is credible.
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