The Himachal Pradesh High Court dismissed a petition, filed against the order passed by the learned Special Judge vide which it had dismissed the application of the petitioner. The Court observed that the petitioner cannot take advantage of the statement made by the victim in her cross-examination that he had assaulted her in the year 2013 because this was never the case of the prosecution and the petitioner is also not being tried for any sexual assault committed in the year 2013.

Brief Facts:

The victim was born on 28.09.1998. The accused is her distant cousin. He entered into sexual relations with the victim in November 2015. The victim became pregnant. She gave birth to a baby girl. The police registered the FIR for the commission of offences punishable under Section 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act. Learned Special Judge, Kullu held that the file was sent to the Juvenile Justice Board for conducting the inquiry. The Juvenile Justice Board held that the petitioner was able to understand the nature and consequences of his act, therefore, the case was transferred to the Children's Court in view of Section 18(3) of the Juvenile Justice Act. The offence was committed in the year 2015 as per the prosecution and the matter is not triable by the Principal Magistrate, Juvenile Justice Board. Hence, the application was dismissed. Being aggrieved from the order passed by learned Special Judge, Kullu, the present revision has been filed asserting that learned Special Judge, Kullu failed to appreciate the testimony of the victim.

Contentions of the Petitioner:

The Learned Counsel for the Petitioner submitted that the victim had categorically stated that the Petitioner assaulted her for the first time in the year 2013. The petitioner was aged less than 16 years at that time and his case was to be tried before the Juvenile Justice Board. Learned Special Judge erred in dismissing the application for transfer without any reasonable cause.

Contentions of the Respondent:

The Learned Counsel for the Respondent submitted that the petitioner is being tried for the commission of an offense punishable under Section 376 of IPC and not Section 4 of the POCSO Act. As per the prosecution, the offense was committed in the year 2015 and the year 2016. Any assault committed before that is not the subject matter of the charge, therefore, he prayed that the present petition be dismissed.

Observations of the Court:

The Court observed that the petitioner cannot take advantage of the statement made by the victim in her cross-examination that he had assaulted her in the year 2013 because this was never the case of the prosecution and the petitioner is also not being tried for any sexual assault committed in the year 2013. Thus, the learned Special Judge was right in saying that the petitioner cannot be tried before the Juvenile Justice Board based on the statement made by the victim in the cross-examination.

The Court said that the party has to prove a case pleaded by it and not any other case. Similarly, the prosecution has also to prove the allegation in the charge sheet and no advantage can be derived from any evidence coming on record contrary to the charge sheet.

The decision of the Court:

The Himachal Pradesh High Court, dismissing the petition, held that there is no merit in the petition.

Case Title: Shankar v State of H.P.

Coram: Hon’ble Justice Rakesh Kainthala

Case no.: Cr. Revision No. 96 of 2023

Advocate for the Petitioner: Mr. Sudhir Bhatnagar

Advocate for the Respondents: Mr. Jitender Sharma

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