Rajesh Kumar @ Lachhu Vs State Of Himachal Pradesh

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

fine

1.,363 IPC,"Rigorous imprisonment

(RI) for five years",Rs.5000/-,"Simple imprisonment  (SI)

for three months

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

3.,"4  of  POCSO

Act",RI for fifteen years,"Rs.10,000/-",SI for six months

4.,"3(1)(xii) of ST

(Prevention  of

Atrocities)Â Act, 1989",RI for two years,Rs.5000/-,"SIÂ Â Â Â Â Â

for      three months

5.,"3(2)(v)  of  ST

(Prevention  of

Atrocities)Â Act, 1989",Life imprisonment,"Rs.10,000/-",SI for six months

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 register Ex.PW-4/C. As per the record, the date of birth of the 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 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 7,1 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 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 casesÂ,,,,

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",,,,

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 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 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 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 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 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 oPf anchhi 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.â€​",,,,

20. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, (2008) 12 SCC 565, AIR 2008 SC 146, 0the 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 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.â€​",,,,

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.""",,,,

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 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 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 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 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",,,,

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 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 outâ€​.,,,,

30. Thus, as per the Doctor i.e. PW-1 who had medically 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 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 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 â€"",,,,

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.,,,,

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 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 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) 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 viewâ€​.,,,,

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.â€​",,,,

39. In Ramesh Chandra Vaishya vs. State of Uttar Pradesh & Another, 2023 SCC OnLineSC 66,8 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.",,,,

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 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.,,,,

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 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 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",,,,