Piar Singh Rana JUDGMENT
Sanjay Karol, J.
1. In relation to FIR No. 60, dated 15.3.2013, for commission of offence, under the provisions of Section 376 of the Indian Penal Code, registered at Police Station Sadar, Una, Himachal Pradesh, accused Gurmukh Singh, hereinafter referred to as the accused, was charged to face trial for having committed offence punishable under the provisions of Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 376 of the Indian Penal Code.
2. On the strength of the evidence led by the prosecution, vide judgment dated 6.8.2013, passed by Special Judge, Una, Himachal Pradesh, in Case No. 3-VII/2013, titled as State of Himachal Pradesh v. Gurmukh Singh, accused was stands convicted of the offence punishable under the provisions of Section 4 of the Protection of Children from Sexual Offences Act, 2012, and sentenced to undergo rigorous imprisonment for a period of seven years and pay fine of ` 5,000/- and in default of payment thereof, to further undergo simple imprisonment for a further period of three months.
3. Hence, the said judgment came to be assailed by the accused by filing Criminal Appeal No. 4109 of 2013 and by the State in Criminal Appeal No. 4232 of 2013.
4. When these appeals came up for hearing, it came to the notice that the trial Court had not dealt with the charge of offence, punishable under the provisions of Section 376 of the Indian Penal Code. As such, for a limited purpose, the matter was remitted to the trial Court for retuning findings thereupon.
5. In terms of separate judgment dated 30.4.2015, passed by Special Judge, Una, Himachal Pradesh in Sessions Case No. 3-VII/2013, titled as State of Himachal Pradesh v. Gurmukh Singh, so assailed by the accused by way of Criminal Appeal No. 230 of 2015, trial Court found the accused guilty of also having committed an offence, punishable under the provisions of Section 376 of the Indian Penal Code. However, since the accused already stood sentenced for having committed offence, punishable under the provisions of Section 4 of the POCSO Act, no separate sentence was imposed for the offence punishable under the provisions of Section 376 of the Indian Penal Code.
6. Since all these appeal arise out of the very same FIR; incident and evidence led by the parties, they were heard together and are being disposed of by a common judgment.
7. It is the case of prosecution that prosecutrix, born on 11.6.1997, was residing with her mother, in village Barnoh, Tehsil & District Una, Himachal Pradesh. In the year 2013, she was studying in Class 10 and in the month of March was undertaking her annual examination. On 14.3.2013 at about 4.30 p.m., when she went to the Forest (Choa) to answer the call of nature, accused came there and after gagging her mouth, sexually assaulted her against her consent and will. Hearing her cries, her aunt Baksho Devi (PW-2) reached the spot and witnes........