MOHAMMAD AAJAM KHAN Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This appeal preferred by the appellant under Sec. 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is directed against judgment and order dated 22/23/5/2015, passed by learned Special Judge (POCSO)/F.T.C/Additional Sessions Judge, Haldwani in Sessions Trial No.99 of 2014, State Vs. Mohammad Aajam Khan, whereby the said court at the hands of trial has held the appellant guilty for the offence punishable under Sec. 376 (2) of IPC and also under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'Act of 2012') but with the aid of Sec. 42 of the Act of 2012 has sentenced him only under Sec. 376 (2) IPC to undergo 12 years rigorous imprisonment with a fine of Rs.10,000.00 and in default of making payment of fine the appellant was further directed to undergo two months additional simple imprisonment.

(2.) Facts of the case in order to resolve the controversy are that a first information report of the occurrence was given by the mother of the victim at Police Station Mallital on 6/7/2014 at 02:30 P.M. with the averments that her daughter aged about six years is a student of Class 1. The occurrence is of 4/7/2014. On that day at about 03:30 P.M. when her daughter returned from school, she informed the informant that a person having a hump on his back held her daughter into his lap, took her into his room, removed her underwear and was trying to insert his private part into the private part of the victim. When the victim felt pain she told the appellant that she would narrate about this incident to her mother on which the appellant left her and closed the door.

(3.) With these averments chik F.I.R. was lodged and the investigation accordingly commenced. The Investigating Officer on completion of investigation submitted a chargesheet against the appellant under Sec. 376 IPC as well as under Sec. 3/4 of the Act of 2012 in the court on which cognizance was taken by the court on 16/9/2014. According to the procedure prescribed under Sec. 207 Cr.P.C. the appellant was provided with copies of the prosecution evidence. Thereafter, a charge was framed against the appellant under Sec. 376 (2) IPC as well as 6 of the Act of 2012. The appellant denied the charges and claimed to be tried. The prosecution in order to bring home the charges against the appellant produced as many as nine witnesses' viz. P.W.1-L. Const. 765 CP Nanda Negi, P.W.2-Dr. Madhu Mathur, P.W.3-Victim, P.W.4-Victim's mother, P.W.5-Dr. Rajesh Kumar Verma, P.W.6-Dr. Vinod Kumar Gadkoti, P.W.7-S.I. Rajendra Kumar, P.W.8- Dr. B.N. Pathak and P.W.9-S.I. Revti Pant and certain other documentary evidence were also produced in evidence.