VIVEK KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dtd. 16/3/2023, 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 Ss. 363 and 366 of the Indian Penal Code (IPC) and Sec. 4 of the Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced as under:

(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 Ss. 363, 366 and 376 of the IPC and Sec. 6 of the POCSO Act. It was asserted that the victim (name being withheld to protect her identity) had gone to her school on 3/8/2018 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 and the accused and found that they had traveled from Khanyara to Mandi in the vehicle driven by Shammi Kumar (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 3/8/2018. 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 9/8/2018 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 victims 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 victims 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 conducting the medical examination of the victim. Dr. Deepika (PW9) conducted the victims medical examination and found 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 official 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 performing sexual intercourse. He issued the MLC (Ex.PW8/B). He preserved the samples and handed them over to the police official accompanying the accused. An application (Ex. P3/PW22) was filed before the learned Judicial Magistrate 1st Class, Dharmshala, for recording the statement of the victim under Sec. 164 of Cr.P.C. Statement (Ex.P10/PW14) was recorded by the learned Judicial Magistrate 1st Class. An application (Ex.PW3/A) was filed before the Head Master of the school in which the victim was studying for issuing the date of birth certificate of the victim. Rupali (PW3) issued a copy of the Matriculation Certificate (Ex.PW3/B) showing that the victim was born on 30/10/2001 and an extract of the daily attendance record (Ex.PW3/C). An application (Ex.PW4/A) was filed for obtaining the Birth Certificate of the victim from the Secretary, Gram Panchayat. Surinder Kumar (PW4) issued a Date of Birth Certificate (Ex.PW4/B) showing that the victims date of birth was 30/10/2001. The site plan of the place, where the victim was kept in an old dilapidated house (Ex. P6/PW22), was prepared. The victim also identified the place from which she was kidnapped. Site plan (Ex. P7/PW22) was prepared. The accused identified the hotel, where he had stayed with the victim for three days. Site plan (Ex. P7/PW22) was prepared. CCTV footage of the hotel (Ex.P9/PW22) was seized. The copy of the driving license (Ex.P2/PW17), which the accused had handed over in the hotel, was also seized. The copy of the bill book (Ex. P3/PW17) was taken into possession. The case property was sent to FSL Junga for analysis, and the results (Ex. P1/PW23 and Ex. P1/PW24) were issued stating that human semen was detected in the lower trousers, underwear of the victim and underwear of the accused. The DNA profile obtained from the trousers and underwear of the victim matched the DNA profile of the accused. The statements of proseuction witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court.

(3.) The learned Trial Court charged the accused with the commission of offences punishable under Ss. 363 and 366 of the IPC and Sec. 6 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried.