IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 620 of 2015 Reserved on: 01.03.2018 Decided on: 16.03.2018 __________________________________________________________

Kishan Chand …..Appellant.

Versus State of Himachal Pradesh ……Respondent.

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Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

1 Whether approved for reporting? Yes.

__________________________________________________________ For the appellant: Mr. Rajnish K. Lal, Advocate, Legal Aid Counsel.

For the respondent/State: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocates C General, with Mr. Bhupinder Thakur, Deputy Advocate General.

Chander Bhusan Barowalia, Judge.

gThe present appeal is maintained by the appellant/accused/convict (hereinafter referred to as “the accused”), laying challenge to judgment dated 04.08.2015, passed by learned Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No. 39 of 2013, whereby the accused was convicted for the commission of offence punishable under Section 5(m) of The Protection of Children from Sexual Offences (POCSO) Act, 2012, read with Section 376(2)(i)

of Indian Penal Code, 1860 (IPC).

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

2. The background facts which gave rise to the prosecution of the accused can tersely be portrayed as under:

The complainant, mother of the prosecutrix (name withheld), has three daughters and a son and the prosecutrix was studying in 5th standard. On 20.07.2013, the complainant went alongwith her husband to village Larda and they returned during midnight. At that time grandmother of the prosecutrix was sleeping in a room and the children were watching TV in another room. On the subsequent morning thre complainant went to Gram Panchayat for attending a meeting and returned around 04:30 p.m. It was told to the complainant by her elder daughter that prosecutrix is having Rs. 82/- aCnd on being asked, the prosecutrix started crying and divulged that during the last night the accused committed sexual intercourse with her and he gave money to her. The prosecutrix also complained pain in her private part and the complainant found iredness around her private part. The matter was reported to the police and statement of the complainant formed basis for registration of FIR. The prosecutrix was got medically examined and her medico legal certificate opined that she was subjected to sexual intercourse. Scientific samples were also preserved for forensic analysis. Human semen was found on shirt and slacks (pyjami) of the prosecutrix, thus the clothes were preserved in a sealed cover for scientific analysis. Police investigation ensued and recoveries of shawl, currency notes and bed sheet were made. The accused was arrested, medically examined and was found capable of performing sexual intercourse. Blood sample of the accused was also obtained. Statement of the prosecutrix was recorded before the concerned Magistrate under Section 164 Cr.P.C. The prosecutrix was produced before Dr. Ritu Sharma, who filled the identification form and obtained her blood sample for DNA profiling. Record qua date of birth of the prosecutrix was also obtained. After conclusion of investigation, challan was prresented in the Court.

3. The prosecution, in order to prove its case, examined as many as twenty witnesses. Statement of the accused was recorded under SectCion 313 Cr.P.C., wherein he pleaded not guilty. The accused did not lead any evidence in his defence.

4. The learned Trial Court, vide impugned judgment dated 04.08.2015, convicted the accused for the offence punishable under iSection 5(m) of POCSO Act read with Section 376(2)(i) IPC and ordered him to undergo rigorous imprisonment for ten years and to pay fine of `10,000/- and in default of payment of fine he was further ordered to undergo simple imprisonment for six months, hence the present appeal pref