Himachal Pradesh High Court

Rajesh Kumar @ Lachhu vs State Of Himachal Pradesh on 10 September, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

1 Neutral Citation No. ( 2024:HHC:8173 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 234 of 2020 a/w Cr. Appeals No. 188 and 360 of 2020 Reserved on: 28.08.2024 Decided on: 10.09.2024 ____________________________________________________

1. Criminal Appeal No. 234 of 2020

Rajesh Kumar @ Lachhu .....Appellant.

Versus State of Himachal Pradesh ......Respondent.

2. Criminal Appeal No. 188 of 2020

Ramesh Chand .....Appellant.

Versus State of Himachal Pradesh ......Respondent.

3. Criminal Appeal No. 360 of 2020

Rajneesh Kumar @ Monu .....Appellant.

Versus State of Himachal Pradesh ......Respondent. _____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes.

_____________________________________________________ For the appellant(s): Ms. Shikha Chauhan, Legal Aid

of 2020.

Mr. Karan Veer Singh, Advocate, in Criminal Appeal No. 188 of 2020.

Mr. N.S. Chandel, Senior Advocate, with Mr. Vinod K. Gupta, Advocate, in Criminal Appeal No. 360 of 2020.

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

2 Neutral Citation No. ( 2024:HHC:8173 )

For the respondent/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Ms. Sharmila Patial, Additional Advocate General, and Mr. Raj Negi, Deputy Advocate General, in all the appeals.

Sushil Kukreja, Judge.

Since all these appeals are the offshoots of impugned

judgment dated 25.02.2020 and order of sentence dated

04.03.2020, rendered by learned Special Judge Kangra at

Dharamshala, District Kangra, H.P. (hereinafter referred to as "the

learned Trial Court"), in Sessions Case No. 12-G/VII/2015, they are

being taken up together for disposal.

2. The instant appeals have been preferred by the

appellants/accused persons/convicts under Section 374 of the

Code of Criminal Procedure against the impugned judgment of

conviction, dated 25.02.2020, and order of sentence dated

04.03.2020, passed by the learned Trial Court, in Sessions Case

No. 12-G/VII/2015, whereby accused persons viz., Rajneesh,

Rajesh and Ramesh were convicted and sentenced as under:

Convict Rajneesh

Sr. No. Offence under Sentence Fine In default of section payment of fine

1. 363 IPC Rigorous Rs.5000/- Simple imprisonment (RI) imprisonment (SI) for five years for three months

2. 366/120B IPC RI for ten years Rs.10,000/- SI for six months

3. 4 of POCSO RI for fifteen Rs.10,000/- SI for six months Act years

4. 3(1)(xii) of ST RI for two years Rs.5000/- SI for three (Prevention of months 3 Neutral Citation No. ( 2024:HHC:8173 )

Atrocities) Act,

5. 3(2)(v) of ST Life imprisonment Rs.10,000/- SI for six months (Prevention of Atrocities) Act,

Convict Rajesh

Sr. No. Offence under Sentence Fine In default of section payment of fine

1. 363/120B IPC RI for five years Rs.5000/- SI for three months

2. 366A/120B RI for five years Rs.10,000/- SI for six months IPC

3. 4 read with RI for seven Rs.5000/- SI for three Section 17 of years months POCSO Act

Convict Ramesh, who remained in police/judicial remand w.e.f.

17.12.2014 to 31.12.2014 was convicted under Section 202 IPC

and sentenced to undergo imprisonment already undergone by

him. All the appellants prayed that their appeals be allowed and

the impugned judgment be quashed and set-aside and they be

acquitted.

3. The facts giving rise to the present appeals, as per the

prosecution story, can be summarized as under:

3(a). On 13.10.2014, around 08:30 p.m., accused Rajneesh,

after conspiring with other co-accused Rajesh, kidnapped the

minor victim (name withheld), under the pretext of marrying her, in

the vehicle of accused Rajesh, having registration No. HP-01D-

1325, from place Ummar, out of the lawful custody of her parents.

Subsequently, accused Rajneesh committed rape with the victim.

The father of the victim reported the matter to the police and

4 Neutral Citation No. ( 2024:HHC:8173 )

investigation commenced. During the search operation, both

accused Rajneesh and minor victim were found at Jawalamukhi

and accused Rajneesh was arrested by the police on 09.12.2014.

Police got conducted medical examination of both accused

Rajneesh and the victim. Statement of the victim was recorded

under Section 164 Cr.P.C on 10.12.2014. On 12.12.2014 police

recorded the statement of the victim wherein she stated that earlier

statements given by her before the police and Court qua living with

accused Rajneesh, was due to pressure and threat of accused

Rajneesh. As per the prosecution story, on 17.10.2014 accused

Rajneesh along with accused Ramesh, who was Pradhan at that

time, came to leave the victim at Gram Panchayat, Khola, but the

mother of the victim did not accept her. It was accused Ramesh

Chand, who advised accused Rajneesh that victim was minor and

they should hide themselves till she (victim) attained the age of

majority. Subsequently, accused Rajneesh took the victim with him

and started living in a rented accommodation at Baddi, where he

sexually assaulted her.

3(b). During the course of investigation, accused Rajneesh

made a disclosure statement under Section 27 of the Indian

Evidence Act and he got identified the spot at village Jalari Padiyar.

Police prepared the spot map and took into possession a bed-

5 Neutral Citation No. ( 2024:HHC:8173 )

sheet. On 12.12.2014 accused Rajesh was also arrested and

accused Ramesh Chand was arrested on 17.12.2014. The victim

belonged to scheduled caste category, whereas the accused

persons were from OBC. Scientific samples which were preserved

during the course of the investigation were sent for scientific

analysis and analysis report was procured. After completion of the

investigation, police presented the chargesheet against accused

Rajneesh, Rajesh and Ramesh before the learned Trial Court.

4. The prosecution, in order to prove its case, examined

twenty nine witnesses. Statements of the accused persons under

Section 313 Cr.P.C. were recorded, wherein they claimed

innocence and denied the prosecution case, however, in defence

they had not led any evidence.

5. The learned Trial Court, vide impugned judgment dated

25.02.2020, convicted the accused persons and vide order of

sentence dated 04.03.2020 sentenced them to undergo

imprisonment as enumerated above, hence the instant appeals

preferred by the appellants/accused persons/convicts.

6. The learned Senior Counsel/Counsel for the appellants

contended that the story projected by the prosecution is totally

false and the learned Trial Court has not legally and properly

appreciated the evidence, which is not only contrary but also does 6 Neutral Citation No. ( 2024:HHC:8173 )

not inspire confidence. They further contended that the findings

recorded by the learned Trial Court are erroneous, illegal, thus the

impugned judgment deserves to be quashed and set-aside by

allowing the instant appeals.

7. Conversely, the learned Senior Additional Advocate

General contended that the judgment passed by the learned Trial

Court is the result of proper appreciation of the material on record

and the same was passed after appreciating the evidence and law

in its right and true perspective. He has further contended that

there is more than sufficient material against the accused persons

for their conviction and the learned Trial Court has passed a well

reasoned judgment, which does not require any interference, thus

the instant appeals, being devoid of merit, be dismissed.

8. We have heard the learned Senior counsel/counsel for

the accused persons, learned Senior Additional Advocate General

for the respondent/State, and carefully examined the entire

records.

9. So far as the age of the victim is concerned, PW-4, the

then Panchayat Secretary, deposed that the police moved an

application, Ex. PW-4/A, for issuance of birth certificate of the

victim, whereupon he issued her birth certificate, Ex. PW-4/B. This

witness further stated that he also issued the abstract of birth 7 Neutral Citation No. ( 2024:HHC:8173 )

victim is 25.05.2000. Thus, at the time of the alleged incident, the

age of the victim was 14 years, 4 months 19 days.

10. 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, the Hon'ble Apex Court has held:-

"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 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."

11. It is a settled principle of law that conviction can be

based upon 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 an

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 8 Neutral Citation No. ( 2024:HHC:8173 )

face value, it may search for evidence direct or circumstantial

which would lend assurance to her testimony.

12. 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 evidence collected

during investigation.

13. In State of Himachal Pradesh Vs. Gian Chand,

(2001) 6 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.

14. In the case of Vijay @ Chinee Vs. State of Madhya

Pradesh, (2010) 8 SCC 191, it was held that the statement of the 9 Neutral Citation No. ( 2024:HHC:8173 )

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:-

"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:-

"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 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.

10. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 10 Neutral Citation No. ( 2024:HHC:8173 )

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:-

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.

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 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:

"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 11 Neutral Citation No. ( 2024:HHC:8173 )

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...

** ** ** **

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.

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.

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 12 Neutral Citation No. ( 2024:HHC:8173 )

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.

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"

15. 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.

16. Reverting back to the facts of the present case, PW-2,

mother of the victim, deposed that the victim studied upto 9th

standard and her two sons, due to their jobs, reside outside. She

further stated that she did not remember the exact date, but during

the month of October, 2014, around 08:30 p.m., when she was

present in her new house and the victim was in the old house, she

noticed that the victim went towards the backside of the old house,

when she did not return for substantial time, she started searching

her. On the subsequent day, around 11:30 a.m., she received a

telephonic call from the victim that she was fine, but she did not 13 Neutral Citation No. ( 2024:HHC:8173 )

disclose her whereabouts. Despite extensive search, the victim

could not be traced and after a month she again received the

telephonic call of the victim and she expressed her willingness to

come to home, but again she did not disclose her whereabouts.

This witness further deposed that later on she came to know that

accused Rajneesh had taken the victim. Thereafter, her husband

got the matter reported to the police. She and her husband went in

search of the victim towards Amb side, where both accused

Rajneesh and the victim were found walking on the road and the

police apprehended them. As per this witness, the victim disclosed

to her that she resided with the accused in a house where the

police had taken the victim and the accused. This witness was

declared hostile by the learned Public Prosecutor, as she has

resiled from her previous statement and she was subject to lengthy

cross-examination. In her cross-examination she admitted that on

09.12.2014 she stated before the police that her daughter (victim)

came to her on 17.10.2014 with Panch of Gram Panchayat Khola.

As per this witness, neither any missing report was lodged by them

in between 13.10.2014 to 05.12.2014 with the police, nor they went

to the police station seeking assistance in searching the victim.

She admitted that from 09.12.2014 to 15.12.2014 the victim

remained with her. She also admitted that on 17.10.2014 when the 14 Neutral Citation No. ( 2024:HHC:8173 )

victim was brought by the Ward Panch, she refused to take her

custody. This witness admitted that despite knowledge that on

17.01.2014 the victim had gone with accused Rajneesh, they did

not lodge any report against him till 05.12.2014.

17. PW-12 (victim) deposed that on 13.10.2014, around

08:30 p.m., accused Rajneesh telephoned her and asked her to

come at Sapari near the gate of SSB Center and she went there

on foot. Accused told her that he wanted to marry her and he

called a car, having registration No. HP-01D-1325, and in that car

they went to Jawalamukhi. As per the victim, the car belonged to

accused Rajesh and at Jawalaji Hotel, both accused Rajneesh and

she (victim) stayed in one room. On the subsequent day, they

went to Chintpurni where they stayed in a hotel in one room. At

both the places accused Rajneesh committed sexual intercourse

with her. Thereafter, they came to Boham Bhatti Panchayat, where

they met Pardhan Ramesh (co-accused), who sent them to Ward

Panch. Her mother was angry and asked her to go back, so she

came back to Panchayat. She further deposed that Pardhan told

her that her age was less than 18 years and he advised her to

underground for three years, then she and accused Rajneesh went

to Jawalaji. Accused Rajneesh took her to Jalari in District

Hamirpur, in the same car and at Jalari they stayed in the house of 15 Neutral Citation No. ( 2024:HHC:8173 )

the relative of accused Rajneesh. Accused Rajneesh disclosed to

his relative that they were just married. Thereafter they went to

village Salashi in District Hamirpur where they stayed in the house

of the relatives of accused Rajneesh, then they went to village

Ambdoli and from Ambdoli accused Rajneesh went to Delhi and

she stayed in the house of the friend of Rajneesh. The victim

further deposed that after 9-10 days, accused Rajneesh came

back and both of them went to Baddi, as the accused told her that

at Baddi he had some job for her. At Baddi they stayed in a rented

accommodation in Vardhman Colony and after a month they came

to Jawalaji, where police met them and they were brought to the

police station. Police called her parents in the police station and

during the course of the investigation, police took into possession

her two suits, a duptta and an underwear. She further stated that

she was medically examined at Jawalaji Hospital and then she was

taken to Jalari where she showed a room to the police, where she

stayed with accused Rajneesh. From the aforesaid room, police

took into possession a bed-sheet, vide recovery memo, Ex. PW-

2/C. Police got her statement recorded before Magistrate at

Dehra. As per the victim, when she stayed with accused Rajneesh

at Baddi, he committed sexual intercourse with her.

18. Father of the victim, while appearing in the witness-box 16 Neutral Citation No. ( 2024:HHC:8173 )

as PW-15, deposed that on 05.12.2014 he went to police station

for lodging a complaint qua missing of his daughter. As per this

witness, the victim was missing since 13.10.2014 and on

05.12.2014 they came to know that she had run away with

accused-Rajneesh. He further deposed that on 09.12.2014 when

they were going in the vehicle of the police, near village Amb,

Nadaun, accused-Rajneesh and the victim met them and they

were brought to the Police Station Jawalamukhi. He also stated

that subsequently the victim was handed over to him. This witness

deposed that the victim handed over her clothes to the police in the

quarter of a lady constable and the accused had also handed over

his underwear to the police. Initially the victim refused for her

medical examination, but on 10.12.2014 her medical examination

was got conducted. He further deposed that statement of the

victim was recorded before the Magistrate at Dehra.

19. Now the moot point involved for consideration in this

appeal is whether the statement of the victim is credible and

worthy of credence. The prosecution has examined the victim as

PW-12. It is undisputed that the victim was a minor of about 14

years of age when the alleged incident took place and she was still

minor when her evidence was recorded in the Court. Being a child

victim and the sole direct witness in support of the prosecution 17 Neutral Citation No. ( 2024:HHC:8173 )

case, her evidence has to be evaluated with great care and

circumspection. The acceptance of testimony of a child witness

under POCSO Act came into consideration before the Courts on

many occasions. In this context, the Hon'ble Supreme Court in the

case of Panchhi and others vs. State of UP (1998) 7 SCC 177 in

paragraphs 11 and 12, observed as follows:

"11. ...... But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law Prakash v. State of MP (1992) 4 SCC 225,Baby Kandayanathil v. State of Kerala, 1993 Suppl (3) SCC 667,Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 and Dattu Ramrao Sakhare v.State of Maharashtra,(1997) 5 SCC 341."

20. In Nivrutti Pandurang Kokate & Ors. v. State of

Maharashtra, (2008) 12 SCC 565, AIR 2008 SC 1460, the Hon'ble

Apex Court while dealing with the child witness has observed as

under:

7. ... ... ... ... ... ... ... ...

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after 18 Neutral Citation No. ( 2024:HHC:8173 )

careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

21. In Radhey Shyam vs. State of Rajasthan (2014) 5 SCC

389 the Hon'ble Apex Court has held as follows:

"12. In Panchhi, (1998 SCC (Cri) 1561) after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy prey to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant 25 apeal406-17.odt pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles."

22. To the same effect is the decision in Shivasharanappa v.

State of Karnataka, 2013(5) SCC705. Para 17 can be referred to

as under:

"17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."

19 Neutral Citation No. ( 2024:HHC:8173 )

23. In view of the above, the law on the issue can be

summarized to the effect that the deposition of a child witness may

require corroboration, but in case his/her deposition inspires

confidence of the court and there is no embellishment or

improvement therein, the Court may rely upon his/her evidence.

The evidence of child witness and credibility thereof would depend

upon the circumstances of each case. There is no rule or practice

that in every case the evidence of such witness be corroborated

before a conviction can be allowed to stand. However as a rule of

prudence, the court always finds it desirable to have the

corroboration to such evidence from other dependable evidence on

record. It is not the law that if a witness is a child, his his/her

evidence shall be rejected, even if it is found reliable. The law is

that evidence of a child witness must be evaluated more carefully

and with greater circumspection because he/she is susceptible to

tutoring.

24. It has been further held in the case of Lallu Manjhi

and another vs. State of Jharkhand (2003) 2 SCC 401 by the

Hon'ble Supreme Court as follows:

"10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely

(i) wholly reliable,

(ii) wholly unreliable, and

(iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in 20 Neutral Citation No. ( 2024:HHC:8173 )

accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.

{See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614}."

25. Applying the aforesaid principles pertaining to

appreciation of evidence of witnesses, it will have to be first

examined as to under which category would the testimony of

PW12 (victim) fall in the present case. If the testimony is found to

be wholly reliable, there would be no necessity of corroboration

and if it is found to be wholly unreliable, it would have to be

discarded. But, if it is found neither wholly reliable nor wholly

unreliable, it would definitely require corroboration. The perusal of

the material available on record would make it clear that at the time

of commission of offence, the victim was about 14 years and at the

time of her deposition before the court, she was about 17 years.

We have carefully gone through the testimony of the victim and

have found many contradictions, discrepancies and improvements

in her statement. A close scrutiny of the evidence of PW 12

(victim) shows that although in her examination-in-chief, she

deposed that at the places Jawalaji and Chintpurni, accused

Rajneesh committed sexual intercourse with her and thereafter

when she stayed with accused Rajneesh at Baddi, he again

committed sexual intercourse with her but, in cross-examination 21 Neutral Citation No. ( 2024:HHC:8173 )

she admitted that in her different statements given to the police,

she had disclosed different facts. She also admitted that whenever

her statement was recorded by the police, her parents were with

her. She admitted that when she came back to her house on

09.12.2014, she refused to undergo her medical examination and

on 10.12.2014 she went for her medical examination on the asking

of her parents. She also admitted that she did not disclose to her

mother (PW-2) that accused Rajesh took her in a taxi and accused

Rajneesh committed sexual intercourse with her. The victim also

admitted that during one month when she remained outside her

house, she was having mobile phone, which was in working order

and during this period only on one occasion she had a talk with her

mother on her mobile phone. She further admitted that when her

statement was recorded at Dehra before the Magistrate, her

parents were with her and she obeyed their command. Statement

of victim under Section 164 Cr.P.C. Ex. PW12/B was recorded on

10.12.2014, however, the same is not in consistence with her

deposition before the Court. In her statement recorded under

Section 164 Cr.P.C. the victim had stated that after staying in

hotels at Jawalaji and Chintpurni with the accused Rajneesh, both

of them went to Chandigarh and thereafter to Delhi and further

stated that till the time she remained with the accused, he had 22 Neutral Citation No. ( 2024:HHC:8173 )

committed sexual intercourse with her only once at Delhi, whereas

in her deposition before the Court she stated that the accused had

committed sexual intercourse with her at the places Jawalaji,

Chintpurni and Baddi. She has nowhere deposed before the Court

that the accused had taken her to Chandigarh and Delhi, rather in

her deposition before the Court she deposed that when the

accused Rajneesh went to Delhi, she stayed back in the house of

the friend of the accused at village Ambdoli. Therefore, since there

are many contradictions and improvements in the statement of the

victim, as such the same does not inspire confidence.

26. The mother of the victim, while appearing in the

witness-box as PW-2 stated that on next day of missing of her

daughter, at about 11:30 a.m. she received a telephonic call from

her and she (victim) told her that she was alright, but she did not

disclose as to where she was. After one month, she had again

received a telephonic call from the victim, whereby she expressed

her willingness to come home. In cross-examination she admitted

that during the medical examination as well as during the recording

of the statement of the victim by the police and by the Magistrate,

she was present alongwith the victim. She also admitted that on

17.10.2014 when her daughter was brought by the Ward Panch,

she refused to take the custody of her daughter. She further 23 Neutral Citation No. ( 2024:HHC:8173 )

admitted that despite knowledge that their daughter had gone with

the accused on 17.10.2014, they had not lodged any report against

the accused till 15.12.2014.

27. The father of the victim, while appearing in the witness-

box as PW-15, deposed that the victim was missing since

13.10.2014 and in his cross-examination, he admitted that from

13.10.2014 to 05.12.2014 he had not lodged any complaint qua

the missing of his daughter (victim), either in the Panchayat or with

the police and during this period the victim had not telephoned him.

He admitted that from 09.12.2014 to 15.12.2014 the victim

remained in their house. He denied that they shunted out the

victim from their house and on 17.12.2014 when the Panchayat

member brought her, they refused to allow her to enter the house.

He could not tell the name of the person who had told him that

accused-Rajneesh had taken away the victim.

28. The evidence of the child victim i.e. PW-12 has to be

analyzed on the basis of her examination-in-chief and cross-

examination read with the evidence of her mother (PW-2) and

father (PW-15). A reading of the evidence of the parents of the

victim shows that the victim was missing since 13.10.2014, but it is

quite surprising that neither of them had lodged any report with the

police regarding her missing till 05.12.2014. It has also come in 24 Neutral Citation No. ( 2024:HHC:8173 )

the prosecution evidence that the mother of the victim received a

telephonic call from her daughter i.e. the victim on the next day of

her missing and after one month again she had received

telephonic call from the victim, whereby she expressed her

willingness to come home but despite that both of them did not

care to bring her back. Moreover, on 17.10.2014 the victim was

brought by the Ward Panch to the house of her mother, but she

refused to take her custody and she had again allowed her to go

with the accused. It is also quite surprising that despite the

knowledge that the victim had gone away with the accused

Rajneesh, they have not lodged any report against him till

05.12.2014. Thus, the conduct of the parents of the victim does not

appear to be natural as when they came to know about the alleged

incident, it was expected from them to immediately lodge the report

with the police, however nothing of the sort was done by them. It

appears that the real picture has been withheld by them for the

reasons best known to them. The alleged incident had taken place

on 13.10.2014 whereas the FIR was lodged on 05.12.2014.The

delay in lodging the FIR could not be explained by the prosecution

which creates a serious doubt about the case of the prosecution.

Since the evidence of the parents of the victim has been

discredited by the defence in their cross- examination and there is 25 Neutral Citation No. ( 2024:HHC:8173 )

no corroboration to the evidence of the child victim (PW12),

therefore, it would not be safe to rely upon the testimony of the

child victim to convict the appellants.

29. So far as the medical evidence is concerned in the

present case, it is also of no assistance to the prosecution because

FIR was registered on 05.12.2014 while the victim was brought by

the police for conducting her medical examination with the alleged

history of sexual assault on 17.11.2014. The victim admitted that

when she came back to her house on 09.12.2014, she refused to

undergo her medical examination and even the doctor was not

informed by her about the alleged sexual assault. She was

thereafter medically examined on the asking of her mother on

10.12.2014 by PW-1, Dr. Priya Sharma, who deposed as under:

"On examination, the victim was conscious, cooperative, well oriented and coherent. There was no external injury present on any part of her body. On internal examination there was no injury present on perineal region. On separation of thighs, no abrasions were noticed. Perspeculum examination, the hymen was old torn with healed tags of epithelium. Per vaginum, no bleeding was present. I had preserved the perineal swabs, vaginal swabs, cervical swabs, pubic hair, head hair, nail clippings and sealed them separately. I had also preserved her wearing apparels i.e. pink coloured payjami suit, brown colored underwear, brazier and white undershirt and sealed the same. I had handed over the aforesaid sealed parcels to the police for chemical analysis. I had issued MLC, Ex.PW-1/D, which is in my hand and bears my signatures. I had reserved my final opinion till the receipt of RFSL report.

Subsequently, on 21.02.2015 the police had produced RFSL report Ex.PW-1/E before me and on the basis of said report, I opined that in the present case the possibility of sexual assault could not be ruled out".

30. Thus, as per the Doctor i.e. PW-1 who had medically 26 Neutral Citation No. ( 2024:HHC:8173 )

examined the victim, the police had brought the victim for

conducting her medical examination on 10.12.2014 with the

alleged history of sexual assault on 17.11.2014. On examination,

there was neither any external injury present on any body part of

the victim nor there was any internal injury on the perineal region.

The hymen was old torn and no bleeding was present. On

15.12.2014 the Doctor had given the initial opinion that the

possibility of sexual assault could not be ruled out. She had also

preserved perineal swabs, vaginal swabs etc. and also the wearing

apparels of the victim and the final opinion was reserved by her

pending receipt of F.S.L. report. Despite the fact that the FSL

report demonstrated that no blood and semen were detected on

the shirt, pajama/slacks, underwear, brassiere, vests, perineal

swab and vaginal swab of the victim, yet the Doctor had given her

final opinion that sexual assault on the victim could not be ruled

out. As the police had brought the victim for conducting her

medical examination with the alleged history of sexual assault on

17.11.2014 while the FIR was registered on 05.12.2014 upon

which the victim was medically examined on 10.12.2014, there was

remote possibility of traces of medical evidence regarding sexual

assault on the victim. The Doctor clearly stated in her cross-

examination that labia majora of the victim was healthy at the time 27 Neutral Citation No. ( 2024:HHC:8173 )

of the examination and she further stated that from the perusal of

the entire evidence, it is clear that there was no sign of forcible

sexual intercourse. She also admitted that on the MLC, Ex.PW-

1/D, dated 10.12.2014, the victim had not disclosed the name of

the accused, the time and the name of the place where the sexual

assault was stated to have been committed. She also admitted

that on 15.12.2014 she had given the opinion that the possibility of

sexual assault could not be ruled-out, but on that day the victim

was not produced before her. As per the FSL report, no blood and

semen were detected on the shirt, pajama/slacks, underwear,

brassiere, vests, perineal swab and vaginal swab of the victim.

Therefore, there was clearly no medical evidence in the present

case to demonstrate that the victim had suffered sexual assault.

As there is no medical evidence on record to support the theory of

the prosecution that the victim was subjected to sexual intercourse

by the appellant, it becomes difficult to uphold the conviction

granted by the trial Court against the accused Rajneesh.

31. The learned Additional AG next contended that a

presumption operates against the accused under Section 29 of the

POCSO Act whereby the Court has to presume that the accused

has committed the offence for which he is charged under the said

Act, unless the contrary is proved. On this basis, it is submitted on 28 Neutral Citation No. ( 2024:HHC:8173 )

behalf of the respondent-State that in the present case, it was for

the appellant Rajneesh to have proved to the contrary and that the

burden was entirely upon him, which he had failed to discharge

and that, therefore, the conviction and sentence imposed by the

trial Court could not be disturbed.

32. In this backdrop, it is first necessary to examine the

effect of presumption under Section 29 of the POCSO Act and the

manner in which the accused could rebut such presumption.

Section 29 of the POCSO Act reads as under:

"29. Presumption as to certain offences -

Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

33. A perusal of the above quoted provision does show

that it is for the accused to prove the contrary and in case he fails

to do so, the presumption would operate against him leading to his

conviction under the provisions of the POCSO Act. It cannot be

disputed that no presumption is absolute and every presumption is

rebuttable. It cannot be countenanced that the presumption under

Section 29 of the POCSO Act is absolute. It would come into

operation only when the prosecution is first able to establish facts

that would form the foundation for the presumption under Section

29 of the POCSO Act to operate.

29 Neutral Citation No. ( 2024:HHC:8173 )

34. In the case of Sitaram Das vs. State of West Bengal

(2020 SCC Online Cal 522) it has been held as under:

"29. Let us now address the applicability of Section 29 of the POCSO Act dealing with availability of presumption to be attracted to against the accused/appellant, in the given set of facts.

30. Most of the witnesses during trial either being declared hostile to prosecution, or not having rendered desired support to the prosecution version, shown in FIR, for the reasons ascribed in the judgment, learned Trial Judge thought it prudent to make the presumption applicable against the accused person, available under Section 29 of the POCSO Act. The principal thrust of this appeal was the imperfect application of Section 29 of the POCSO Act dealing with presumption in a case, where victim herself had given a go-by to the persecution story developing a separate story in her own version, contrary to the case set up in F.I.R, and subsequently in her 164 statement. The evidence adduced by the prosecution irresistibly indicates one and only important feature that the foundational evidence with respect to the offence charged has not been led in the instant case. It would be most improper, if the presumption available in Section 29 of the POCSO Act is straightway made applicable in a case even in absence of foundational evidence being led by prosecution. As has already discussed that besides medical evidence, there was no other evidence in making out a case, either of rape or aggravated sexual penetrative assault, and that medical evidence cannot be considered to be conclusive in sense in the given set of facts, so in the absence of proof of foundational evidence corresponding to the charges framed in this case against the accused person, there hardly left any circumstances for making any application of presumption available under Section 29 of the POCSO Act. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross- examination by defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to probalise the incident complained of in the F.I.R."

35. Thus, the aforesaid decision makes it clear that

although the provision states that the Court shall presume that the 30 Neutral Citation No. ( 2024:HHC:8173 )

accused has committed the offence for which he is charged under

the POCSO Act, unless the contrary is proved, the presumption

would operate only upon the prosecution first proving foundational

facts against the accused, beyond reasonable doubt. Unless the

prosecution is able to prove foundational facts in the context of the

allegations made against the accused under the POCSO Act, the

presumption under Section 29 of the said Act would not operate

against the accused. The statutory presumption under Section 29

of the POCSO Act must be understood and tested on the anvil of

the golden thread which runs through web of our criminal

jurisprudence system that an accused is presumed to be innocent

till the guilt is conclusively established beyond reasonable doubt.

36. In the case on hand, proper analysis of the evidence of

prosecution witnesses and medical evidence brought on record by

prosecution shows that foundational facts necessary to raise a

presumption under Section 29 of POCSO Act, have not been laid

or established beyond reasonable doubt by the prosecution,

therefore, the presumption under Section 29 of the POCSO Act

would not operate against the accused persons. Hence, in view of

the material contradictions and discrepancies in regard to the

evidence of the prosecutrix as well her mother and father coupled

with the fact that the medical evidence does not support the case 31 Neutral Citation No. ( 2024:HHC:8173 )

of the prosecution, the conviction cannot be based on such

evidence which cannot inspire the confidence of the Court.

37. Accused Rajneesh has also been convicted for the

commission of the offence under Section 3(1)(xii) &3(2)(v) of SC

and ST (Prevention of Atrocities) Act, 1989, on the ground that he

knew that the victim belonged to Scheduled Caste and he himself

was not of that caste and he used his position to sexually exploit

her, who was also a minor. However, the learned Trial Court has

failed to consider that the offence under Sections 3(1) of the SC &

ST (Prevention of Atrocities) Act, 1989, would be attracted only if

the feelings of enmity, hatred or ill-will are promoted or attempted

to be promoted against members of the Scheduled Castes or

Scheduled Tribes as a class and not on criticizing an individual

member.

38. In Hitesh Verma vs. State of Uttrakhand reported in

(2020) 10 SCC 710, the Hon'ble Supreme Court has held that an

offence under Section 3(1) is not established merely on the fact

that the victim is a member of the Scheduled Caste, unless there is

an intention to humiliate a member of the scheduled Caste or

Schedule Tribe for the reason that the victim belongs to such

caste. The relevant portion of the aforesaid judgment reads as

under:

"12. The basic ingredients of the offence under Section 3(1)(r) 32 Neutral Citation No. ( 2024:HHC:8173 )

of the Act can be classified as "(1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (2) in any place within public view".

13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment."

39. In Ramesh Chandra Vaishya vs. State of Uttar

Pradesh & Another, 2023 SCC OnLineSC 668, it has been held

that every insult or intimidation would not amount to an offence

under Section 3(1)(x) of the Act, 1989, unless, such insult or

intimidation is targeted at the victim because he is a member of a

particular Scheduled Caste or Scheduled Tribe.18.

40. In the instant case, the victim had not alleged that the

accused, being in a position to dominate her will had exploited her

sexually. In fact, the victim had not deposed anything in her

statement before the learned Trial Court that accused Rajneesh

had intentionally insulted or intimidated her and used his position

to sexually exploit her with an intent to humiliate her. Thus, no

offence under Sections 3(1)(xii) and 3(2)(v) of the SC & ST

(Prevention of Atrocities) Act, 1989, is made out against the

accused.

33 Neutral Citation No. ( 2024:HHC:8173 )

41. So far as the charge against accused Rajesh is

concerned, the story of the prosecution is that the accused

Rajneesh had kidnapped the victim in conspiracy with co-accused

Rajesh with a view to compel her to marry with accused Rajneesh

and also compel her to have sexual intercourse with him.

However, the perusal of the entire evidence on record shows that

there is not even an iota of evidence to link the accused Rajesh

with the commission of the offence.

42. As per the case of the prosecution, accused Rajneesh

had kidnapped the victim in taxi No. HP01D-1325, in conspiracy

with accused Rajesh Kumar. However, the prosecution itself has

examined the owner of taxi in question, having registration No. HP-

01D-1325, Shri Sunil Kumar (PW-11), who deposed that he had

engaged one Radhey Shyam (PW-9) as its driver and on

14.10.2014 he (PW-9) was driving the vehicle and to this effect he

has given certificate, Ex. PW-11/A.

43. The driver Radhey Shyam, while appearing in the

witness-box as PW-9, deposed that in the year 2014 he had been

driving the taxi, i.e., vehicle No. HP01D-1325, of Sunil Dutt (PW-

11). He feigned his ignorance that on 14.10.2014 who had hired

his taxi. He also specifically stated that he had not taken the

accused persons present in the Court in his taxi on 14.10.2014. He 34 Neutral Citation No. ( 2024:HHC:8173 )

did not support the prosecution case and had turned hostile and

thereafter he was cross-examined by the learned Public

Prosecutor, however, nothing favourable could be elicited from his

lengthy cross-examination. In his cross-examination, he has

specifically denied that accused Rajesh had met him at Bhatti

Khola and hired his taxi to go to Jalari. He has also denied that

accused Rajesh asked him to drop one boy and one girl at Jalari.

He further denied the suggestion that on 14.10.2014 after dropping

the girl and accused Rajneesh at Jalari,he came back with co-

accused Rajesh. Thus, it has come on record that Sunil Kumar

was the owner of taxi in question, having registration No. HP-01D-

1325 and on 14.10.2014 one Radhey Shyam was driving the

vehicle and to this effect the owner has given certificate, Ex. PW-

11/A. The prosecution has failed to prove that on the relevant day,

the accused Rajesh was driving the vehicle in question, having

registration No. HP-01D-1325, and had dropped the victim and

accused Rajneesh at village Jalari, in the aforesaid vehicle. No

other evidence has been led by the prosecution to connect

accused Rajesh with the commission of the offence. Thus the

prosecution has failed to prove on record that accused Rajesh had

played any role in removing the victim from the lawful custody of

her parents in conspiracy with accused Rajneesh.

35 Neutral Citation No. ( 2024:HHC:8173 )

44. So far as the charge against accused Ramesh is

concerned, as per the story of the prosecution, he was Pardhan of

the concerned Panchayat and on 17.10.2014 accused Rajneesh

alongwith the victim came to Gram Panchayat Bhun Bhatti and

despite the fact that the victim was minor, the accused Ramesh

Chand had asked accused as well as the victim to go underground

for three years, as the victim was below 15 years of age. He was

charged for the commission of the offence under Section 202 IPC.

However, if the statement of the victim is perused, she deposed

that at Bhun Bhatti Panchayat they met Pardhan Ramesh and she

was sent to her home by the Pradhan, i.e., accused Ramesh, with

Ward Panch and her mother got angry upon her and asked her to

go back and had refused to take her custody. She also deposed

that Pradhan told her that since her age was less than 18 years, he

advised her to remain underground for three years. Thus, the

evidence on record shows that it was the mother of the victim who

had refused to take her custody. The accused Ramesh had

performed his obligation by sending her to her home with the Ward

Panch and rightly advised the accused and the victim to wait for

three years, as the victim was below 15 years of age at that time.

Therefore, from the entire evidence on record, it cannot be said

that accused Ramesh had committed any offence under Section 36 Neutral Citation No. ( 2024:HHC:8173 )

202 IPC.

45. In this backdrop, it would be unsafe to hold that the

prosecution had proved its case beyond reasonable doubt against

the appellants under the provisions of the POCSO Act or even

under Sections 363, 366, 366A, 120B IPC and Sections 3(1)(xii),

3(2)(v) of ST (Prevention of Atrocities) Act, 1989.

46. Keeping in view the overall facts and circumstances of

the case, we are of the opinion that the prosecution has failed to

establish its case against the appellants/accused persons beyond

reasonable doubt. Learned trial Court fell in error in ordering the

conviction of the appellants and the reasons given by the learned

trial Court in its judgment/order for convicting the appellants are

perverse and not at all sustainable. Hence, all these appeals are

allowed and the impugned judgment of conviction dated

25.02.2020 and order of sentence dated 04.03.2020, rendered by

learned Special Judge Kangra at Dharamshala, District Kangra,

H.P. are set aside. The appellants are acquitted of the charges

framed against them.

47. Since the appellants, Rajneesh Kumar @ Monu and

Rajesh Kumar @ Lachhu, are in custody, they be set at liberty

forthwith, if not required in any other case. Fine amount, if

deposited by the appellants, be refunded to them. Release 37 Neutral Citation No. ( 2024:HHC:8173 )

warrants be prepared forthwith.

48. The appellants are directed to furnish personal bonds

in the sum of Rs.50,000/-each with one surety each 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.

49. The appeals are accordingly disposed of, so also the

pending miscellaneous application(s), if any

( Tarlok Singh Chauhan ) Judge

( Sushil Kukreja ) Judge 10th September, 2024 (virender)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU

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