NAWABUDDIN Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22/08/2019 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 280 of 2018 by which the High Court has dismissed the said appeal preferred by the accused - appellant herein and has confirmed the conviction of the accused for the offences punishable under Sections 376(2)(i) of IPC and Section 5/6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as "POCSOAct"), the original accused has preferred the present appeal.

(2.) That as per the case of the prosecution on 17/06/2016 at about 5:00 pm, the first informant (PW­1) had gone to fetch water and her husband was out for work. At that time, her daughter (victim girl) aged four years was all alone in the house. The accused - appellant herein who was a neighbour of PW­1, enticed and took the victim girl in the bushes to rape her. However, at that time the accused was spotted by some persons naked in the process of raping the victim girl. The accused and the victim girl were disrobed. The people who had gathered around caught the accused red handed and handed him over to the police. That a first information report was lodged by PW­1 - mother of the victim girl for the offences punishable under Sections 376 read with 511 of IPC and Section 3/4 of the POCSO Act. The victim girl was medically examined by PW­10 - Dr. Vandana Sundriyal on 17/06/2016. During the course of investigation the statement of the victim girl as well as the witnesses were recorded. After conclusion of the investigation the investigating officer filed the chargesheet against the accused for the offences punishable under Section 376(2) (F) of IPC and Section 3/4 of the POCSO Act. The charges were framed against the accused for the offences punishable under Section 376(2)(i) of IPC and Section 5/6 of the POCSO Act. The accused denied the charges and claimed to be tried. Therefore, he was tried by the learned Special Judge (POCSO Act) for the aforesaid offences.

(3.) Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Trial Court/Special Judge (POCSO Act), the accused preferred an appeal before the High Court. Before the High Court, amongst other grounds, one of the grounds was that the case would not fall under Section 5/6 of the POCSO Act and at the most the case may fall under Section 7/8 of the POCSO Act as there was no penetration and at the most and even as per the case of the prosecution the accused had tried to commit the rape. By the detailed impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the conviction of the accused and the sentence of life imprisonment. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the accused has preferred the present appeal.