RAJESH Vs. STATE

JUDGEMENT

(1.) By the present appeal, the appellant challenges the judgement dtd. 26/8/2019 whereby the appellant was convicted for offences punishable under Ss. 354/354A/323 IPC read with Sec. 10 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and the order on sentence dtd. 30/8/2019 whereby the appellant was directed to undergo rigorous imprisonment for a period of five years and a fine of Rs.5,000.00 for offences punishable under Sec. 10,POCSO Act and rigorous imprisonment for a period of one year for offences punishable under Sec. 354 IPC and Sec. 354A IPC and rigorous imprisonment for a period of six months for offence punishable under Sec. 323 IPC and all the sentences were directed to run concurrently.

(2.) Learned counsel for the appellant contends that the conviction of the appellant for offence punishable under Sec. 10 POCSO Act is not warranted and illegal for the reason the age of the prosecutrix has not been proved and in the absence of proof of age it cannot be held that the prosecutrix was a minor, thus one of the necessary ingredients of the offence punishable under Sec. 10 POCSO Act is missing. She further states that the appellant was the foster father of the prosecutrix and was interested in her well being. Even as per the prosecutrix, the appellant did not like her coming late from the school and going along with the boys. Thus the appellant was only disciplining her due to which she got annoyed and lodged the FIR in question. Conviction of the appellant is based on the sole testimony of the prosecutrix. The mother and the younger sister of the prosecutrix are not eye witnesses and their evidence is required to be discarded being hearsay. Since the offence under Sec. 10 POCSO Act is not made out and the unexpired portion of the appellant's sentence is now nearly three months only, the appellant be released on the period undergone in case this Court, on merits, finds that a case to uphold the conviction under Sec. 354/354A/323 IPC is made out.

(3.) Learned APP for the State countering the arguments of learned counsel for the appellant states that the age of the prosecutrix has been duly proved by the prosecution from school record vide Ex.PW-10A which shows that the prosecutrix was born on 20/1/2002 and thus on the date of incident, that is, 23/9/2016 she was a minor. Soon after the incident, the prosecutrix made a PCR call and was medically examined which shows injury marks on her. After the alleged incident, the appellant was involved in one more case on which FIR No.970/2017 under Sec. 509 IPC and Sec. 12 POCSO Act was registered at PS Samaipur Badli on the complaint of prosecutrix which offence was allegedly committed when the appellant was released on bail during the trial in the above noted case.