KISHAN DEHARIYA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This criminal appeal filed by the appellant-accused under Sec. 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dtd. 22/3/2022 passed by learned Special Judge, POCSO Act, 2012, FTC, Kabeerdham (CG) in Special Session Case No.305/2021, whereby the appellant-accused has been convicted under Ss. 363, 366, 376(3) of the Indian Penal Code and Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and sentenced in the following manner: <FRM>JUDGEMENT_40_LAWS(CHH)12_2023_1.html</FRM> It is pertinent to mention here that the appellant has been convicted under Sec. 376(3) IPC also but penalty under Sec. 6 of the POCSO Act is also similar, therefore, in view of Sec. 42 of the POCSO Act, the appellant has been sentenced only for offence under Sec. 6 of the POCSO Act.

(2.) Case of the prosecution, in brief, is that complainant, who is the grand-father of the victim/prosecutrix, lodged a report in Police Station Kukdur that on 16/3/2012 at about 9.00 pm, he went to the filed to guard the chana (gram), his grand-daughter/victim/prosecutrix was sleeping alone in the house and parents of the victim/prosecutrix were making bricks in the courtyard of the house. On the next day morning, i.e. on 17/3/2012, when the complainant returned from the field, the victim/prosecutrix was not found in the house. They searched whereabouts of her, but could not find her and thereafter lodged FIR u/s. 363 of Indian Penal Code on 19/3/2021 at Police Station Kukdur, against unknown person. During investigation, the victim/ prosecutrix was recovered from the possession of the appellant on 19/11/2023 and Baramdagi/recovery panchnama was prepared vide Ex-P/1. Document in respect of age of the victim was collected and statement of the victim as well as other witnesses were recorded. According to the statement of the victim, the appellant lured her for marriage, took her to his uncle's house at Village Sheetaldagh and committed forceful sexual intercourse with her at night. She also stated that earlier also the appellant took her to forest area near Kodwa and committed forceful sexual intercourse with her. Based on this, offence under Ss. 366 and 376 IPC and Sec. 4 and 6 of the POCSO Act were added. Spot map (Ex-P/4) was prepared. Statement of the victim under Sec. 164 CrPC was got recorded vide Ex-P/3. The victim was medically examined by Dr. Sangeeta Bajkar (PW-4), who opined vide MLC report (Ex- P/15) that no external or internal injury were found on the body of the victim and hymen was old ruptured. She prepared two vaginal slides and also recovered panty of the victim, handed over the same for chemical examination Vide (Ex-P/16). Class-V marksheet (Article A) of the victim was seized vide Ex-P/8. Dakhil Kharij Register of Primary School, Mathpur was seized vide Ex-P/12. Underwear of the accused was seized vide Ex-P/21. The appellant was arrested vide Ex-P/24. FSL report (Ex-P/28) was received with regard to seized undergarment and vaginal slides of the victim and the undergarment of the accused. After usual investigation, charge sheet was filed before the learned trial Court.

(3.) The learned trial Court framed charges under Ss. 363, 366, 376(3) of the IPC and Ss. 5/6 of the POCSO Act, read over and explained to the accused, who abjured his guilt.