RANDHIR @ MALANG Vs. STATE

JUDGEMENT

(1.) The appellant has been produced pursuant to production warrants issued in terms of order dated 07.07.2018 from the Central Jail No.4, Tihar, New Delhi. The nominal roll in terms of order dated 07.07.2018 has also been received from the Superintendent of Prison, Central Jail No.4, Tihar, New Delhi indicating to the effect that as on 20.08.2018, the appellant had undergone five years, four months and two days of incarceration qua the impugned sentence awarded vide order dated 30.03.2017 in the State Case No.51/2/13 of a period of 13 years of Rigorous Imprisonment for the offence punishable under Section 6 r/w Section 5 (m) of the POCSO Act, 2012 and was sentenced to a further period of Rigorous Imprisonment of one year for the offence punishable under Section 323 of the Indian Penal Code, 1860 and was further sentenced a fine of Rs. 50,000/- for the offence punishable under Section 6 r/w 5 (m) of the POCSO Act with it having been directed in the event of default of the payment of the said fine, the convict i.e. the appellant herein would undergone one year of Simple Imprisonment and out of the said fine of Rs. 50,000/-, Rs. 40,000/- was directed to be paid to the child/victim with the benefit of Section 428 of the Cr.PC, 1973 having been granted to the convict. Both the sentences were directed to be run concurrently.

(2.) The nominal roll indicates that a period of seven years, three months and 23 days as on 20.08.2018 is the unexpired period of sentence in the event of the fine being paid and apparently the nominal roll indicates that the fine has not been paid.

(3.) On behalf of the appellant learned counsel for the appellant does not press the appeal on merits in view of the testimony of the prosecutrix/the minor child and in view of the FSL result on the record and the MLC on the record in relation to the minor child. A submission is however made on behalf of the appellant that the sentence imposed be reduced which has been vehemently opposed on behalf of the State by the learned APP for the State submitting to the effect that despite the statement made by PW-2 that the appellant was in a drunken/ intoxicated state nevertheless the testimony of the PW-2 Shokeen and the statement made by the prosecutrix both under Section 164 of the Cr.P.C., 1973 and the statement of the prosecutrix examined as PW-1 are to the extent that the appellant on being seen by the eye witness PW-2 had gone to the extent of throwing the minor child/ the prosecutrix aged two and a half years at the time of the occurrence into the drain after committing penetrative sexual assault on the person of the child by inserting his penis into her vagina and also having caused hurt to her qua which the charge was framed on the date 06.09.2013, coupled with the testimony of the minor child examined as PW-1 which even goes to the extent of stating that the accused/convict i.e. the appellant herein had inserted his underwear into her mouth, coupled with the FSL result dated 29.11.2016 Ex. PW 21/D as also adverted to hereinabove which bring forth the prosecution version in relation to the DNA profile (STR analysis) generated from the blood sample of the victim, anal swabs of the victim, nails clippings of the victim, frock of the victim, blood sample of the accused, blood and semen stains from the underwear from the spot and the DNA profile generated from the source of the Ex.14a i.e. the blood sample of the accused being similar with the DNA profile generated from the source of Ex.16 i.e. the semen stains from the underwear from spot, it is apparent that there is no ground for grant of any leniency whatsoever.