Deceased minor victim's statements on sexual assault admissible under Evidence Act S.32 if causing death; school-first certificate proves age; no dual sentence under IPC S.376 and POCSO S.4 per S.42 POCSO.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment of conviction dated 31.10.2018 and order of sentence dated 21.11.2018, passed by learned Special Judge, Shimla, H.P., vide which the appellant (accused before learned Trial Court) was convicted of the commission of offences punishable under Sections 376 and 506 of the Indian Penal Code (IPC) and Section 4 of Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced as under:-

(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 376 and 506 of the IPC and Section 4 of the POCSO Act. It was asserted that the victim (name withheld to protect her identity) was 17 years old on the date of making the report to the police. She met the accused two years before reporting the matter to the police. She and the accused liked each other. The accused was residing at Mehli. He used to call the victim to Mehli. He repeatedly maintained sexual relations with the victim in his room. He used to threaten the victim on her refusal to maintain sexual relations. He also promised to marry the victim. The victim became pregnant, and she told the accused about the pregnancy, but the accused advised her to abort the fetus. The victim found that the petitioner was already married. The accused had sexually exploited the victim by promising to marry her. She filed an application (Ex.PW22/A). The police registered the FIR (Ex.PW22/B). SI Reena (PW22) investigated the matter. She sent the victim to Deen Dayal Upadhaya Hospital (DDU), Shimla, for her medical examination along with an application (Ex.PW15/A). Dr. Ganga (PW15) conducted the medical examination of the victim and found that the victim was pregnant for 28 to 30 weeks. She collected the blood sample of the victim on an FTA card for DNA analysis. She issued the MLC (Ex.PW15/B). She advised an ultrasound examination for gestational age and other fetal parameters. The period of gestation was found to be 22 weeks and 2 days as per the ultrasound report. SI Reena arrested the accused and sent him to DDU for his medico-legal examination, along with an application (Ex.PW2/A). Dr Surender Kumar (PW2) conducted the medical examination and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He obtained the blood sample of the accused on an FTA Card and other samples. He issued MLC (Ex.PW2/B) and handed over the samples and the FTA Card to the police officials accompanying the accused. SI Reena visited the spot and prepared the site plan (Ex.PW22/D). She took the photographs (Ex.PW22/E1 and Ex.PW22/E2). She recorded the statement of the victim, which was videographed and transferred to DVD (Ex.PW17). The DVD was put in a parcel (Ex.P16), and the parcel was sealed with seal ‘C’. The seal impression (Ex.PW22/F) was taken on a separate