(A) Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Highly improbable Case – Unnatural offence – No injury on private parts of victim and accused – Victim was about 10 years old while accused was 37 years old well-built man – Held: As Per text of Modi’s Jurisprudence, the injury on the non-consensual victim of tender age is bound to be present, if he is medically examined shortly after the offence. Conviction set aside. (Para 25, 26, 27)
(B) Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – False Story – Unnatural offence – Payment of Rs 15 each to two boys to remain silent – During investigation, Rs. 30/- (three currency notes of Rs.10/-each) were produced before the police – Held: If Rs. 15/- each were given to both the victim and his friend, then they ought to be in possession of the currency notes or coins of the denomination of Rs. 5/- be it in the shape of Rs.5/-, Rs.1/- and Rs. 2/-, as the case may be, to account for the Rs. 5/-. This clearly casts not only suspicion but a serious doubt in the prosecution story. Conviction set aside. (Para 32, 33, 34)
(C) Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Failure to identify accused – Unnatural offence – Accused and Victim family know each other – Victim found to be intelligent – Failure to identify accused by victim in court – Held: we find it extremely difficult to believe that the victim would have failed to identify the perpetrator given the fact that the child victim is fairly intelligent as is evident from his cross-examination. Conviction set aside. (Para 36)
(D) Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Non-Examination of Material Witness – Adverse inference – Non examination of Eye witness of unnatural offence – Held: It appears that the said witness had been deliberately and intentionally withheld by the prosecution without there being any explanation, which constrains this Court to draw an adverse inference and come to the conclusion that had this witness been examined, he would have not supported the case of the prosecution. Conviction set aside. (Para 38)
(E) Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Age of Victim – . In order to prove the age of child victim, the birth certificate, school certificate etc., as envisaged under both Juvenile Protection Act as well the Protection of Children against Sexual Protection Act, were required to be produced. Only admission certificate is produced – which does not fulfill the requirement of the Act – Held: The Court has no hesitation in concluding that the prosecution has miserably failed to prove that the victim was child at the relevant time. Conviction set aside. (Para 40, 41)
HIGH COURT OF HIMACHAL PRADESH
2023 STPL(Web) 184 HP
Tsewang Vs. State Of Himachal Pradesh
Cr. A. No. 138 of 2021-Decided on 19-09-2023
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