BIRJU NAYAK Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Since above two criminal appeals arise out of same judgment of conviction and order of sentence relating to same crime number, they are heard together and being disposed of by this common judgment.

(2.) These criminal appeals under Sec. 374(2) of Cr.P.C. are directed by the appellants against the impugned judgment of conviction and order of sentence dtd. 27/5/2022, passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Mahasamund in Special Criminal Case No. H-18/2020, whereby the appellants-accused have been convicted for offence under Sec. 363, 366, 376D of the Indian Penal Code, (in short, hereinafter referred to as 'the IPC') and Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as 'POCSO Act') and each of them has been sentenced as under :- <FRM>JUDGEMENT_39_LAWS(CHH)9_2023_1.html</FRM> It is pertinent to mention here that appellants have also been convicted for the offence under Sec. 376D of the IPC, but since punishment under Sec. 6 of the POCSO Act, is greater in degree, therefore, in view of provisions of Sec. 42 of the POCSO Act, the appellants have been convicted only for offence under Sec. 6 of the POCSO Act. All the substantive jail sentence have been directed to run concurrently.

(3.) Case of the prosecution, in brief, is that the father (P.W. 2) of the prosecutrix (P.W. 1) filed a report in Police Station Sankara that on 4/7/2020 at 2:00 pm his daughter had gone to a shop with Rs.10,.00 but she did not return till evening. On being searched, he could not find prosecutrix. On the said report of the complainant, missing person number 12/2020 was registered in police station Sankra. On investigation, it was found that the minor daughter of the complainant has been lured away by unknown person, on which the FIR No. 98/2020 for offence under Sec. 363 of IPC was registered in Police Station Sankra. During the investigation, the prosecutrix was recovered on 7/7/2020 vide recovery memo Ex. P-2. Thereafter, the prosecutrix told during interrogation that the accused persons came on a motor cycle and after showing her the mobile phone, made her drink some water, after which she fainted. On regaining conscious between 2 to 4 hour in the afternoon, she came to know that after taking her to a house, one of the persons made physical relation with her, then both of them took her near a tree and again the same person made physical relation with her and tied her to a tree with a rope and ran away. On the basis of the statement of the prosecutrix, the offense under Sec. 366, 376, 34 IPC and Sec. 06 of the POCSO Act was added to the case. After obtaining consent from the prosecutrix and her father, prosecutrix was medically examined by the doctor. Vaginal slide, underwear of the prosecutrix were seized. The accused were arrested, Test Identification Parade (TIP) of appellant Birju Nayak was got done vide Ex. P-5 from prosecutrix and medical examination of accused Puran Nayak was also done. A site map (Ex. P-3) of the place of occurrence was prepared. Seized slides and underwear were sent to Forensic Science Laboratory for testing, statements of witnesses were recorded and after completing the investigation, the charge sheet was filed in the court for trial.