Partly allowed

Pushkarma v. State of Hp

Himachal Pradesh HC9 Jul 2024CR.A/131/2023

Case brief

AI extract

What is this about?

Appeal against conviction for kidnapping and raping a minor. The victim turned hostile and denied sexual assault; the court found the SFSL reports unreliable because samples analysed were not those taken from the victim. Conviction under Section 363 IPC alone was upheld; convictions under Sections 366, 376(3) IPC and Section 4 POCSO Act were set aside and the accused released, having undergone sen

What the court decided

AI extract

Pushkarma Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 131 of 2023 Reserved on: 27.06.2024 Decided on: 09.07.2024 _____________________________________________________ Pushkarma …..Appellant Versus State of Himachal Pradesh ……Respondent ________________________________________________________ Coram_

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Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge

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1 Whether approved for reporting?

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_____________________ For the appellant:	_________ Mr. Nitin Thakur Advocate	_______ Thakur, and M s.	________________ Mr. Yuyutsu Singh r. Munish Kumar,
For the respondent/State:	Mr. Yas Additional Sharmila	hwardhan Advoca Patial,	Chauhan, Senior te General, with Ms. Additional Advocate
	General,	Mr. J.S.	Guleria and Mr. Raj
	Negi, Dep	uty Advo	cates General.

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Sushil Kukreja, Judge

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The instant appeal has been maintained by appellant/ accused/convict (hereinafter referred to as the accused) against the judgment of conviction dated 18.01.2023 and order of sentence dated 20.01.2023, passed by learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Rampur Bushahr, H.P., in CIS No.47/2021, whereby he was convicted under Sections 363, 366 and

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

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376(3) of the Indian Penal Code (for short ‘IPC’) and was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,000/- under Section 363, IPC and in default of payment of fine, he shall have to undergo simple imprisonment for a period of one month. He was also sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/- under Section 366, IPC and in default of payment of fine, he shall have to undergo simple imprisonment for a period of two months. Further, he was also sentenced to undergo rigorous imprisonment for a period of twenty years and to pay fine of Rs.10,000/- under Section 376(3) of IPC and in default of payment of fine, he shall have to undergo simple imprisonment for a period of six months.

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The facts giving rise to the present appeal, as per the prosecution story, are that in the year 2021, the victim (name withheld), who was studying in 10^th standard, was residing with her grandparents and she was using the mobile phone of her grandmother for online studies. The accused became her friend on facebook and on 06.10.2021, he made a telephonic call to her and told her that he was coming to take her. Thereafter on 07.10.2021, he came in a car near the house of the victim, which was being driven by his friend and at about 7:00 p.m., he took her towards his village Bhagavat by enticing and alluring her and on the way near Tapri, they had taken the meal

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and reached Bhagavat at around 01:00 a.m. He promised to marry her and on 08.10.2021, he committed penetrative sexual intercourse with her in his house and till the morning of 10.10.2021, when police came to his house, the victim was kept there and ultimately she was recovered by the police. When the victim went missing, her grandfather intensively searched her, but she could not be traced and then on 08.10.2021, her grandfather (complainant) lodged a complaint, whereupon FIR No.52 of 2021, dated 08.10.2021, under Sections 363, 366-A and 376, IPC was registered against the accused and the investigation ensued. The complainant disclosed the mobile number, being used by the victim and thereafter the police procured the CDR detail relating the said mobile number, which was found switched off since the evening of 07.10.2021. However, it was found that from the mobile number of victim, the last call was made to mobile No.7807834124, hence, its location was traced and the same was found at Bhagavat, Sarahan, from where the victim was recovered later on. Police got her medically examined and the scientific samples were preserved, sealed and handed over to the police. Police also effected relevant recoveries and the victim was handed over to her mother. The accused was also medically examined and scientific samples were preserved and thereafter on 10.10.2021 during further course of investigation, the victim produced her clothes, which she was wearing

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at the time of the alleged incident, which were taken into possession. On 11.10.2021, she identified the room where the accused subjected her to penetrative sexual assault and the police made relevant recoveries from the said room. The police got recorded the statement of victim under Section 164, Cr.P.C., procured the record relating to her date of birth and also recorded the statements of the witnesses and prepared the spot map.

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On the completion of the investigation and receipt of the SFSL report, the charge-sheet was prepared and presented before the trial Court.

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The learned trial Court, vide order dated 31.01.2022, framed the charges against the accused under Sections 363, 366-A, 376(3), IPC and Section 4 of the Prevention of Children from Sexual Offence Act ( for short, ‘ POSCO Act’), to which he did not plead guilty and claimed trial.

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In order to prove its case, the prosecution examined as many as 18 witnesses and thereafter the statement of accused was recorded under Section 313 Cr.P.C., wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded to be innocent and being falsely implicated. However, the accused did

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not examine any witness in his defence.

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On the basis of evidence led on record by the prosecution,

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the learned trial Court convicted the accused, vide the impugned judgment and sentenced him as per the description given hereinabove.

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Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the appellant/accused approached this Court by way of the appeal, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.

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Learned counsel for the appellant contended that the trial Court has wrongly appreciated the evidence by ignoring major discrepancies and contradictions in the statements of the prosecution witnesses. He further contended that there is not even an iota of evidence, which could connect the accused with the commission of the offence and even the victim has categorically deposed that the appellant has not done any wrong with her. Hence he submitted that the impugned judgment of conviction and order of sentence may be quashed and set-aside and the accused be acquitted.

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Conversely, the learned Senior Additional Advocate General contended that the learned trial Court has rightly and correctly appreciated the evidence in its true perspective. He further contended that there is more than sufficient material on record which clearly shows that the accused had committed the crime. The evidence, which has

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come on record, is enough to convict the accused, therefore, he submitted that the impugned judgment and order of sentence need no interference and the appeal, which is devoid of merits be dismissed.

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We have heard the learned counsel for the appellant and

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the learned Senior Additional Advocate General for the respondent/State. In order to appreciate the rival contentions of the parties, we have also gone through the record carefully.

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So far as the age of the victim is concerned, PW-8, the then Panchayat Secretary, deposed that he had issued birth certificate Ext. P-17/PW-8, perusal of which shows that the date of birth of the victim is 25.02.2007. He also adduced in evidence copy of Pariwar Register Ext.P-18/PW-8, wherein also, the date of birth of the victim is recorded as 25.02.2007. Thus, at the time of the alleged incident, the age of the victim was 14 years, 7 months 10 days.

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Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297 , Hon'ble Apex Court has held:-

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"49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate

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eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."

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It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The prosecutrix complaining of having been a victim of the offence of rape is not accomplice of the crime and there is, no rule of law that her testimony cannot be acted without corroboration on material particulars. Her testimony has to be appreciated on the principles of probabilities just as the testimony of any other witness and if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony.

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The Hon'ble Supreme Court has observed in a catena of decisions that the Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If the statement of the prosecutrix is of sterling quality and inspires confidence, then corroboration from other evidence need not be sought, but where the statement of the prosecutrix is shaky and does not inspire confidence then corroboration should be sought from other

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evidence collected during investigation.

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In State of Himachal Pradesh Vs. Gian Chand, (2001) 6

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SCC 71 , it was held that it is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.

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In the case of Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191, it was held that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. Paras 9 to 14 of the judgment are reproduced as under:-

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"9.In State of Maharashtra v. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-

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“16.A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can

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act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

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10. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:-

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12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

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11. In State of Punjab v. Gurmit Singh and Ors.: AIR 1996 SC 1393, this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction

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and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:

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“8...The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury.... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances…

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21….The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

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12. In State of Orissa v. Thakara Besra and Anr. AIR 2002 SC 1963, this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

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13. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshswar v. State of Rajasthan.

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14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix"

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From the above enunciation of law, it is clear that evidence of a victim of rape cannot be equated with the evidence of an accomplice and it has to be treated at par with the evidence of the victim of any other crime. If the testimony of a victim of rape, on overall appreciation of evidence is found to be reliable, it can be acted upon without seeking corroboration from any other source.

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Reverting back to the facts of the present case, the moot point involved for consideration in this appeal is whether evidence adduced by the prosecution is credible and worthy of reliance. PW-1 ‘V’, who is the mother of the victim, deposed that she had three children, one daughter and two sons and the victim is her daughter, who was 15 years old. She further deposed that the victim was earlier studying in

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Senior Secondary School ‘ Kothi ’, but in the year 2019, she was sent to the house of her grandparents for studying. In the year 2021, the victim was studying in 10^th standard and on 07.10.2021 at about 10:00 AM, she received a phone call from her husband, who disclosed that the victim was missing and she was searched, but they could not trace her. On 08.10.2021, her husband and father-in-law went to P.S. Moorang to report the matter to the police and on 09.10.2021, they were called by the police to the police station and her daughter was there, who was traced by the police and brought to the police station. Thereafter, her daughter got her statement recorded before the police, wherein she disclosed that the accused had committed penetrative sexual assault with her. Her daughter was carrying a bag containing clothes, which she was wearing on the date of sexual assault, however, she further disclosed that she had washed these clothes. Her clothes consisting of ' Salwar' and 'Kameez' which were put in a white cloth parcel and sealed, were taken into possession by the police. On 11.10.2021, she alongwith her husband, victim and police went to the house of the accused at village Bhagawat, where the victim had shown the room where she was kept by the accused and also shown mattress over which he had committed sexual assault.

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PW-3, who is the grandfather of the victim, deposed that

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the child victim is daughter of his son. In the year 2021, the child victim,

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who was 15 years, was residing with them. On 07.10.2021, she was at home and was cooking meal in the kitchen. He further deposed that there was no electricity on that day and they thought that she was in the kitchen and cooking meal, but she was found missing. They searched her everywhere but she could not be traced. On the next day, they went to Moorang Police station to report the matter. A SIM Card which was in the mobile phone of his grand daughter, had been given to him by his sister, who found the same on the road. This mobile belonged to his wife, but the same had been given to the victim for online classes. The victim was traced by the police at some village near Sarahan .

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However, the victim, while appearing in the witness box as PW-4, did not support the case of prosecution so far as it related to the fact that the accused committed rape/penetrative sexual assault upon her. She categorically deposed that she used to reside with her grandparents. She further deposed that she used to have mobile of her grandmother and used to operate facebook. She had made friends on facebook and used to chat with accused on facebook, who used to chat with her as a friend. The accused made a phone call to her and said that there was marriage in his home and asked her to come to his home to attend marriage. She called the accused to her village and he came in the evening of 07.10.2021 in a vehicle and his friend was also with him. Thereafter, in the vehicle, she went with accused to his village

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and during the night, they reached the village at about 12-01 AM and stayed at the house of accused. She stayed at the house of the accused w.e.f 08.10.2021 to 11.10.2021. She further deposed that there the accused had not done any wrong act with her and on 11.10.2021, during day time, at about 11 am, the police official came to the house of the accused and she was taken to the police station. She feigned ignorance that what was taken by the police from the room and what documents were prepared in her presence. She also stated that she did not give her clothes to the police.

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So far as medical evidence is concerned, PW-5 Dr. Oshin

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deposed as under:-

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“ No history of any injury of internal aspect of thigh, perineum, Labia majora, Labia majora.

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No history of any abrasion, erosion and other external injury at the time of examination.

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Local Examination: Genital is normal, no sign of any external and internal injury. Hymen: Not visible. Vagina: No swelling/No injury it was ok”

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“ On 07.12.2021 police produced before me a FSL Report and after perusal the report my final opinion is human semen was detected on Vaginal swab of victim, Vaginal slide of victim, Urine sample of victim, Undergarment. Blood was not detected on pubic hair, nail clippings, scalp hair and Shirt.

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Human blood was detected on blood sample of victim.”

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On the basis of above analysis, she gave her final opinion

that:-

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“1. a mixed autosomal STR DNA Profile was obtained from Ext.2 (vaginal swab of victim) from which two DNA Profile could be identified of these two DNA Profile one DNA Matched with the DNA profile obtain from Ext.13 which is blood sample on FTA card of Accused. Sample taken by other PHC while the other DNA profile matches with the DNA profile obtain from Ext.1 which is blood sample of Victim.

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2. An identical autosomal STR DNA Profile pertaining to a male individual was obtained from Ext. 8 (Underwear of victim)

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3. Ext. 11 (quilt/Mattress cover) this sample taken by other PHC and this DNA Profile matches completely with DNA Obtained from Ext. 13/ Blood sample of FTA card of Pushkarma.

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After examination of victim and the report of FSL report I am of the opinion that sexual intercourse with victim has taken place.”

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Thus, perusal of deposition of the Medical Officer shows that after examination of the victim and after the receipt of the SFSL report, she was of the opinion that the sexual intercourse with the victim has taken place. However, the prosecution has failed to connect the SFSL reports Ext. P-37/PW-18 & P-38/PW-18 with the commission of the offence of rape. In the report Ext.P-37/PW-18, dated 26.11.2021, names of the hospital where the samples were collected have been mentioned as PHC Reckong Peo & PHC Ribba. Similarly, in report Ext.P-38/PW-18 also names of the hospital, where the samples were collected have been mentioned as PHC Reckong Peo and PHC Ribba. Admittedly, the victim was examined by the Medical Officer at PHC Rarang. The police had also moved application Ext. P-9/PW-6 before the Medical Officer,PHC Rarang for conducting the medical

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examination of the victim. PW-18, SI Rajender Thakur, who is the Investigating Officer of the case, deposed that application Ext. P-9/PW6 was given to M.O, PHC Rarang for conducting the medical examination of the victim and victim was sent with LC Nisha for hospital, where her medical examination was conducted and MLC Ext. P-10/PW-6 was obtained and exhibits were deposited by LC Nisha with MHC .PW-5 Dr. Oshin also deposed in her statement before the Court that she had taken (1) FTA card of blood sample of victim, (2) Blood sample, (3), Vaginal swab, (4) Vaginal slide, (5) Urine sample, (7) Pubic hair, (8) Nails clipping and (9) undergarments of the victim, sealed and handed over the same to the police. However, there is no mention of PHC Rarang in SFSL reports Ext.P-37/PW-18 & P-38/PW-18. Rather, the name of PHC Reckong Peo and PHC Ribba have been mentioned in the SFSL reports. The SFSL report was the material piece of evidence, to connect the accused with the commission of the offence. However, this link is totally missing. The prosecution has failed to explain as to where the blood samples, vaginal swab etc. of the victim collected by the Medical Officer, PHC Rarang, have disappeared and why the same did not reach SFSL, Junga. The samples, which were received at SFSL, Junga, are the samples collected at PHC Reckong Peo and PHC Ribba and not allegedly collected at PHC Rarang where the victim was medically examined and where her blood samples,

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vaginal swab etc. were preserved.

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Therefore, in view of the aforesaid facts and circumstances of the case, the possibility of tampering with the case property i.e. the blood samples, vaginal swabs etc.of the victim cannot be ruled out, particularly in view of the fact that the victim (PW-4) admitted in her cross-examination by learned defence counsel that when she was medically examined, no samples were taken from her body. She also stated that the doctor did not take her clothes when she was medically examined and during her cross-examination by learned Public Prosecutor, she denied the suggestion that salwar Ext. P2 and kurta Ext. P3 were her clothes which she was wearing at the house of the accused and which she allegedly identified before the police Therefore, the prosecution has failed to establish that the the blood samples, vaginal swabs etc of the victim which were obtained during her medical examination at PHC Rarang were sent to SFSL for analysis, as such, no reliance can be placed upon the SFSL reports Ext.P-37/PW-18 & P-38/PW-18. Similarly, no reliance can be placed upon the final opinion of the Medical Officer Ext. P-11/PW-5, which is based on the aforesaid SFSL reports.

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Hence, considering the version of the victim that the accused had not done anything wrong with her, coupled with fact that she has not sustained any external and internal injury, any injury on her

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genitals and the failure of the prosecution to connect the SFSL reports with the commission of the offence, it is wholly unsafe to rely upon the evidence of the prosecution to base conviction of the accused for the offence of rape.

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The appellant/accused has also been charged for commission of the offence punishable under Section 363 of IPC. Although, the victim has turned hostile, but on close scrutiny of her statement would reveal that on 07.01.2021, the accused came to her home in the evening in a vehicle alongwith his friend and thereafter she went with him to his village. Though, the victim has stated that she had joined the company of the accused at her own, however, since the victim is below 18 years of age, her consent is no consent in the eyes of law. The victim was under the guardianship of her grandfather. There is nothing on record to show that the accused had taken away the victim with the consent of her grandfather or grandmother, with whom she was residing or with the consent of her parents. Therefore, the prosecution has been able to prove that the accused enticed the victim and kidnapped her from the lawful guardianship of her grandparents, therefore, the appellant/accused is held guilty for commission of the offence punishable under Section 363, IPC. However, there is no evidence on record to prove that the accused induced and took away the victim with an intent that she may be forced or seduced to illicit

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intercourse with him or any other person, as such, the prosecution has failed to prove its case against the accused for commission of the offence punishable under Section 366 & 366-A of IPC.

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Keeping in view the overall facts and circumstances of the case, we are of the firm opinion that the prosecution has failed to establish its case against the appellant-accused beyond reasonable doubt for commission of the offence punishable under Sections 366, 366-A, 376(3) of IPC and Section 4 of POCSO Act. However, the prosecution has been able to prove the guilt against him for commission of the offence punishable under Section 363 of IPC. Hence, the instant appeal is partly allowed and the impugned judgment of conviction dated 18.01.2023 and order of sentence dated 20.01.2023, passed by learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Rampur Bushahr, H.P., in CIS No.47/2021, titled State of Himachal Pradesh Vs. Pushkarma, is modified to the extent that the conviction and sentence imposed upon the appellant/accused for commission of the offence under Section 363 of IPC to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,000/under Section 363 of IPC is upheld. However the conviction and sentence imposed upon him for the commission of the offence punishable under Sections 366 & 376(3) of IPC read with Section 4 of POCSO Act, are set aside.

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As the period of sentence has already undergone by the

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appellant-accused, who is behind the bars since 10.10.2021, he be set at liberty forthwith, if not required in any other case. Fine amount, if deposited by the appellant, be refunded to him. Release warrants be prepared forthwith.

¶121

The appellant is directed to furnish personal bond in the sum of Rs.50,000/- with one surety bond in the like amount to the satisfaction of the Registrar (Judicial) of this Court, strictly in terms of provisions of Section 437-A of Cr.PC.

¶122

The appeal is disposed of accordingly, so also the pending miscellaneous application(s), if any.

¶123

( Tarlok Singh Chauhan ) Judge

¶124

( Sushil Kukreja )

Judge

July 09, 2024

(VH)

VIRENDER BAHADUR Digitally signed by VIRENDER BAHADURDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa738990a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9bb134, CN=VIRENDER BAHADURReason: I am approving this documentLocation: Date: 2024.07.09 15:34:05+05'30'Foxit PDF Reader Version: 2023.2.0

Pushkarma v. State of Hp

Case brief

What is this about?

What the court decided

Pushkarma v. State of Hp

Case brief

What is this about?

What the court decided

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