Decided on March 03,2021

STATE OF H. P. Respondents


Sandeep Sharma,J. - (1.) Instant Criminal Appeal filed under Section 374(II) of the Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence dated 5th/6th March, 2019 passed by learned Special Judge, Kangra, District Kangra, Himachal Pradesh, in Sessions Case No.67-P/VII/2014, titled as State of Himachal Pradesh versus Sanjeev Kumar and another, whereby learned Court below while holding appellant ( hereinafter referred to as the accused) guilty of having committed the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012( for short 'POCSO Act'), convicted and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months.
(2.) For having bird's eye view, facts relevant for proper adjudication of the case at hand are as under:- (i). Victim/prosecutrix, who happened to be minor daughter of complainant Raj Sunani (PW-9) had gone to her school on 14.8.2014 to appear in her 10+1 examination, but since she did not return back in the evening, her mother (wife of the complainant) informed her husband and son in the evening at 7:00 PM. Though, complainant and other family members tried to search the victim/ prosecutrix, but since she was not found, complainant (PW-9) lodged missing report at police Station, Panchrukhi. Subsequently, complainant, as named hereinabove, allegedly received telephonic information that the victim/ prosecutrix is in the house of one of the co-accused, Rajni Bala at Banuri as such, complainant, his father-in-law, his brother-in-law and nephews went to the house of above named accused Rajni Bala to know the whereabouts of victim/prosecutrix, but since co-accused Rajni Bala feigned ignorance, complainant telephonically informed Panchrukhi police. (ii). Police officials conducted search of the house of accused Rajni Bala in the presence of some independent witnesses and allegedly recovered victim/prosecutrix from the bed box kept in the drawing room. After having prepared recovery memo, police recorded the statement of the complainant under Section 161 Cr.P.C and thereafter on the basis of the same, FIR Ex.PW 19/A came to be registered against the present accused Sanjeev Kumar and co-accused Rajni Bala under Sections 342, 376, 120-B of IPC and Sections 4 and 17 of the POSCO Act and since then the accused is behind the bars, whereas co-accused Rajni Bala stands acquitted vide judgment impugned in the instant appeal.
(3.) After completion of the investigation, police presented the challan in the competent court of law, who being satisfied that a prima-facie case exists against the accused, framed charges under the aforesaid provisions of law against both the accused. However, subsequently, vide judgment dated 5th/6th 3.2019, learned Special Judge, Kangra at Dharamshala though held present accused guilty of having committed the offence punishable under Section 4 of the POCSO Act and accordingly, convicted and sentenced him to undergo rigorous imprisonment for seven years, but acquitted co-accused Rajni Bala of the commission of offence punishable under Sections 342, 120-B of IPC and Sections 4 and 17 of the POCSO Act. In the aforesaid background, accused has approached this Court in the instant appeal, seeking therein his acquittal after setting aside the judgment of conviction and order of sentence recorded by learned Court below. It is not in dispute that no appeal, if any, ever came to be filed at the behest of the respondent-State qua acquittal of co-accused Rajni Bala.;

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