GOPAL SAGARWANSHI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This criminal appeal under Sec. 374(2) of Cr.P.C. is directed by the appellant against the impugned judgment of conviction and order of sentence dtd. 29/10/2021, passed by learned Upper Sessions Judge, 3rd Fast Track Special Court (POCSO Act), Durg, Distt. Durg in Special Sessions Case (POCSO Act) No. 86/2020, whereby the appellant-accused has been convicted for offence under Sec. 376(3), 376(2)(? ) of the Indian Penal Code, (in short, hereinafter referred to as 'the IPC') and Sec. 5(?)/6 of the Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as 'POCSO Act') and sentenced as under :- <FRM>JUDGEMENT_37_LAWS(CHH)9_2023_1.html</FRM> Both the substantive jail sentences have been directed to run concurrently.

(2.) Case of the prosecution, in brief, is that on 10/4/2020, father (P.W. 2) of the victim made written complaint Ex. P-1, at PS Mohannagar, Distt. Durg, stating inter alia that on same day i.e. on 10/4/2020, when he came to his house, then he saw that appellant was giving mobile to his daughter (victim/prosecutrix) aged about 15 years, which he snatched from his daughter and when he asked her about the same, then she told by weeping that appellant, who is their neighbour, has been making physical relation with her since one year on pretext of marriage. She also told him that due to public shame, she could not tell anybody in this regard. Based on above facts, unnumbered FIR ( Ex. P-9) was registered at PS Mohan Nagar, Distt. Durg and was sent to its jurisdictional police station Bori, where numbered FIR Ex. P-21 was registered. During the course of investigation, victim was medically examined by Dr. K. Thakur (P.W.6), who gave her report vide Ex. P-16 and in her deposition, stated inter alia that on medical examination, she reported that hymen was old ruptured, no injury on private part, fungal infection was found on thigh, she opined that no definite opinion can be given about recent intercourse. For further opinion, she prepared two vaginal slides of prosecutrix, after sealing the same, handed over it to the female constable for chemical examination. She had further suggested for radio-logical test of victim for her age determination. During the course of Investigation, spot map Ex.P-2 was prepared, progress report of Class 7 (Ex. P-4) of the victim was also seized from her vide seizure memo Ex.P-3. Undergarments of victim were seized vide Ex. P-5. Birth certificate Article A-1 was seized from prosecutrix vide seizure memo Ex. P-7. Spot map was got prepared from concerned Patwari, one mobile phone of Micromax company black colour was seized from father of the victim vide Ex. P-11, Dakhil-Kharij register of Primary School, Parsada of victim was seized from Head Master of the school vide Ex. P-12. Accused was medically examined by Dr. M.K. Parkar (P.W. 7). Deposition of witnesses were recorded, vaginal slides, undergarment seized from victim and underwear of the accused were sent for chemical examination and FSL report is Ex. P-35. The appellant was arrested. After completing the investigation, the charge sheet under Sec. 376(3) of the IPC and Sec. 5(?) and 6 of the POCSO Act was filed before the learned trial Court for trial.

(3.) Charges were framed against the accused under Sec. 376(3), 376(2)(?) of the IPC and Sec. 5(?)/6 of the POCSO Act. Charges were read over and explained to the accused who abjured his guilt.