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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, RAKESH KAINTHLA, JJ.
Abhishek Mohammad @ Shekhu - Appellant
Versus
State of H.P. - Respondent
Cr. Appeal No. 20 of 2022
Decided On : 10-01-2025
| Table of Content |
|---|
| 1. appeal against conviction on sexual offences. (Para 1 , 2 , 3) |
| 2. testimonies of witnesses outlined. (Para 4 , 5 , 6) |
| 3. medical evidence critical for corroboration. (Para 7 , 15 , 16) |
| 4. arguments presented by both parties. (Para 8 , 10 , 11) |
| 5. court's analysis of evidence and questioning procedures. (Para 9 , 12) |
| 6. judicial reasoning concerning medical evidence and witness reliance. (Para 13 , 14) |
| 7. lack of corroborative medical evidence. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 8. final judgment and release order. (Para 23 , 24 , 25) |
JUDGMENT :
Rakesh Kainthla, J.
The present appeal is directed against the judgment dated 28.01.2022 and order dated 31.01.2022 passed by learned Special Judge, Fast Track Court, Kangra at Dharamshala (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission ofoffences punishable under Sections 377 and 506 of INDIAN PENAL CODE (in short ‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) and was sentenced as under:-
| Section | Sentence imposed |
| Under Sections 506 of IPC | To undergo simple imprisonment for two years and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo simple imprisonment for one month. |
| Under Section 6 of POCSO | To undergo simple imprisonment for ten years and to pay a fine of Rs.8,000/- and in default of payment of fine to further undergo simple imprisonment for three months. |
2. The learned Trial Court has also ordered that both the substantive sentences would run concurrently and also mentioned that no separate sentence was awarded to the accused under Section 377 of IPC.
3. Briefly stated, the facts giving rise to the present appeal are that the victim’s uncle (PW3) made a complaint (Ext. PW3/A) to the police stating that the victim was aged 10 years and was studying in 6th Class. He had vacations at the school.The victim told the informant’s son on 04.07.2018 at about 9:00 pm that he (the victim) and PW2 had gone to the Jungle to fetch mangoes. ‘R’ went towards Mansa Mata Temple and the victim was left alone in the jungle. The accused came and enquired from the victim as to what he was doing in the jungle. The victim replied that he had visited the jungle to fetch mangoes. The accused told the victim that he would bring the mangoes to him. He asked the victim to accompany him. He took the victim towards the jungle and gave him some mangoes. Thereafter, the accused sodomized the victim. He threatened the victim to kill him in case, the incident was revealed to any person. The victim suffered pain in his anus. The police registered the FIR (Ext. PW6/D). Krishan Kumar (PW9) conducted the investigation. He visited the spot and prepared the site plan (Ext. PW9/1). He took the photographs of the spot (Ext. PW3/B1 to Ext. PW3/B4). He got the spot position video recorded and the video recording was transferred to CD (Ext. PW3/B5). He filed an application (Ext. PW5/A) for conducting the medical examination of the victim. Dr Aman (PW5) conducted the medical examination of the victim. He found an old bruise on the base of nose in healing process. He preserved the samples and reserved his opinion to be given after the report of FSL. He handed over the samples to the police official accompanying the victim. He issued the MLC (Ext. PW5/B). The case property was deposited with HC-Yashpal (PW6). Krishan Kumar (PW9) arrested the accused on 05.07.2018. He filed an application (Ext. PW5/C) for the medical examination of the accused. Dr. Aman (PW5) conducted the medical examination of the accused and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He preserved the samples and handed them over to the police official accompanying the accused. He issued the MLC (Ext. PW5/D). The case property was deposited with HC Yashpal (PW6), who sent them to FSL for analysis. Krishan Kumar filed an application (Ext. PW7/A) to obtain
Convictions under POCSO and IPC necessitate corroborating medical evidence; lack thereof warrants acquittal.
The presumption under Sec. 29 of the POCSO Act is not absolute and requires the prosecution to first establish foundational facts beyond reasonable doubt for it to operate against the accused.
The credibility of minor victims in sexual assault cases does not solely rely on medical evidence; their coherent testimony can suffice for conviction, supported by corroborative witness accounts.
The testimony of a child witness can be relied upon if corroborated by other evidence, and the presence of support persons does not imply tutoring.
The necessity of proving penetration or manipulation causing penetration for charges under the POCSO Act was emphasized, leading to a conviction for attempted offences.
Corroboration of the victim's testimony by medical evidence and the Forensic Science Laboratory report is crucial in establishing the commission of the offence.
The prosecution must establish the guilt of the accused beyond reasonable doubt, relying on credible evidence; absence of physical corroboration led to acquittal.
The main legal point established in the judgment is the admissibility of the victim's testimony without corroboration, the significance of a 'sterling witness', and the reliance on consistent testimo....
The presumption under the POCSO Act is rebuttable and requires foundational facts to be established beyond reasonable doubt for conviction.
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