IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.463 of 2023 Reserved on: 05.06.2025 Date of Decision: 21.06.2025 Vivek Kumar @ Gotia ...Appellant Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

For the Appellant : Mr. Arjun Lall, Advocate.

For the Respondent/State : Mr. Jitender Sharma, Additional Advocate General.

Rakesh Kainthla, Judge The present appeal is directed against the judgment and order dated 16.03.2023, passed by learned Additional Sessions Judge, (Fast Track Court) Kangra, at Dharmshala, H.P. (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of the commission of offences punishable under Sections 363 and 366 of the Indian Penal Code

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

(IPC) and Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced as under:

The substantive sentences of imprisonment were directed to run concurrently.

(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 before the learned Trial Court for the commission of offences punishable under Sections 363, 366 and 376 of the IPC and Section 6 of the POCSO Act. It was asserted that the victim (name being withheld to protect her identity) had gone to her school on 03.08.2018 at about 08.30 a.m., however, she did not return to her home. Her parents made an enquiry from the school and found that she had not visited the school. Her father also made enquiries from his relatives and found that the accused was also missing from his home. He suspected that the accused had kidnapped the victim. He filed an application (Ex.PW1/A) before the police. FIR (Ex.P1/PW12) was registered at the police station. SI Ashwani Thakur (PW22) conducted the investigation. He searched for the victim anhd the accused and found that they had traveled from Khagnyara to Mandi in the vehicle driven by Shammi Kumar i(PW13). SI Ashwani Thakur went to the house of the accused, but the accused was not present at home. His father disclosed that the accused had left the home on 03.08.2018. SI Ashwani Thakur directed him to inform the police in case of the return of the accused. Jagdish Chand, the father of the accused, informed the police on 09.08.2018 that the accused and the victim had reached the house. The police went to the house of the accused. The victim and the accused were found sitting in a room. The victim’s parents identified her. One blue bag containing the clothes of the accused and the victim was kept near the accused. The police separated the clothes of the victim and the accused. These were put in separate parcels, and each parcel was sealed with seal “X”. Seal impression (Ex. P1/PW22) was taken on a separate piece of cloth, and the seal was handed over to the victim’s father after the use. The parcels were seized vide memo (Ex.PW1/B). SI Ashwani Thakur prepared the site plan (Ex. P2/PW10). He took the photographs (Ex. P2/PW15 to P12/PW15). The statement of the victim was recorded. The video recording was transferred to the DVD (Ex. P1/PW13). An application (Ex. P2/PW22) was filed for condhucting the medical examination of the victim. Dr. Deegpika (PW9) conducted the victim’s medical examination and ifound that the possibility of sexual intercourse could not be ruled out. She issued the MLC (Ex. P2/PW7). She preserved the samples and handed them over to the police ofÏcial accompanying the victim. The accused was interrogated and arrested. An application (Ex. PW8/A) was filed for conducting his medical examination. Dr. Kumar Saurav (PW8) conducted the medical examination of the accused and found that there was nothing to suggest that the accused was incapable of performi