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 principles of appreciation of evidence in such cases.

JUDGMENT :

Sushil Kukreja, J.

The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, laying challenge to the judgment of conviction dated 19.06.2021 and order of sentence dated 23.06.2021, passed by learned Special Judge, Fast Track Special Court (under POCSO Act), Kangra at Dharamshala, District Kangra, Himachal Pradesh, in RBT Sessions Case No.129-P/VII/20/2019, titled State of Himachal Pradesh Versus Sunil Kumar @ Sonu, whereby the appellant (hereinafter referred to as the accused), was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.20,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for period of one year, for the commission of offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’).

2. The prosecution story, in brief, is that on 02.12.2018 the complainant (name withheld) alongwith her husband made a complaint at Police Station Bhawarna to the effect that her daughter, i.e. child victim, was missing since morning at about 7.30 a.m. when she had gone to a temple. About 8-10 days back, the child victim had sent a message from the mobile phone of mother-in-law of the complainant to some unknown number and thereafter when the complainant made a call to the said unknown number, the person who received the call, did not disclose his name. On 01.12.2018, the child victim again made a call from the mobile phone of her neighbour and when the complainant made a call on the said number, that person again picked up the phone, but did not respond and on 02.12.2018 at about 7.30 a.m., the child victim had gone to the temple, but did not return home and when the complainant had gone to see her, a small water container, was found thrown in the kitchen garden. When the complainant checked the articles in the house, she found that one pant of the child victim and Rs.500/- were missing. The child victim was student of 9th class in Z.A.V. Public School Sullah and the complainant had suspicion that the said unknown person, from whose mobile the massages had come, had allured her daughter and taken away her with him.

3. On the basis of the said complaint, a formal FIR No.185, dated 02.12.2018, was registered against the accused at Police Station Bhawarna, District Kangra, H.P., under Section 363 of the Indian Penal Code.

4. During investigation, Inspector Surinder Kumar, Investigating Officer of the case, procured birth certificate of the child victim and on 03.12.2018, the father of the child victim informed the police that his daughter had returned back to home herself and they were coming to the police station alongwith the daughter. Thereafter, the Investigating Officer recorded the statement of the complainant i.e. mother of the child victim and he had also recorded the statement of the child victim through videography. The accused was associated in the investigation and he was arrested. The child victim was got medically examined and on 04.12.2018, the statement of the child victim was got recorded under Section 164 Cr.P.C. The Investigating Officer prepared the spot map and taken into possession one handkerchief from the bushes near Maranda Railway Station, which was used by the child victim for cleaning and also recorded the statements of the witnesses. He had also taken into possession the bed sheet, from the room where the child victim stayed along with the accused. During investigation, the Investigating Officer had also taken into possession motorcycle bearing registration No.HP-37C-0361 alongwith its documents and school leaving certificate of the child victim. The samples were sent to RFSL and the sample of DNA was also sent.

5. On the completion of the investigation and receipt of the RFSL report, the Investigating Officer prepared the chargesheet and presented the same in the Court. Subsequently, a supplementary charge-sheet was also prepared and presented by AS