DALIP S/O VISHNU Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This criminal jail appeal arises out of the Judgment and Order dated 14.09.2015, passed by Fast Track Court/ Special Judge, POCSO Act / Additional District and Sessions Judge, Dehradun, whereby the appellant was convicted under Section 377 of IPC and sentenced to undergo rigorous imprisonment for a period of 07 years along with a fine of Rs. 5000/. In default of payment of fine, the appellant / accused was directed to undergo further one month simple imprisonment. The appellant / accused was convicted under Section 354-A IPC and sentenced to undergo rigorous imprisonment for a period of 03 years. The appellant / accused was convicted under Section 354-B IPC and sentenced to undergo rigorous imprisonment for a period of 03 years along with a fine of Rs. 3000/. In default of payment of fine, the appellant / accused was directed to undergo further 15 days' simple imprisonment. The appellant / accused was convicted under Section 8 of the Protection of Children From Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment for a period of 03 years along with a fine of Rs. 1000/. In default of payment of fine, the appellant / accused was directed to undergo 15 days simple imprisonment. It was directed that all the sentences shall be run concurrently and the period already undergone by the appellant / accused shall be adjusted.

(2.) Smt. Kamla Devi W/o present appellant / accused gave a complaint to the Police Station Patel Nagar, Dehradun on 14.04.2014 at about 12:15 a.m. stating therein that on 13.04.2014 at about 09:00 p.m. she went to deliver the milk at N.C.R. Residency. When she returned her house, she saw that her husband Dalip was doing obscene act with her elder daughter in bathroom. When she called them, Dalip and her daughter came out from the bathroom. Her daughter told her that the appellant was trying to commit obscene act with her. On the said complaint, a Case Crime No. 106 of 2014 under Sections 354-A, 354-B I.P.C. and Section 7/8 of the Protection of Children From Sexual Offences Act, 2012 was lodged at Police Station Patel Nagar, Dehradun. The victim was medically examined at Emergency of District Female Hospital, Dehradun. The prosecutrix was medically examined on 14.04.2014 at about 12:55 a.m. at Doon Women Hospital Dehradun and supplementary report was also prepared on 17.04.2014. The accused / appellant was arrested on 14.04.2014 at about 10:30 a.m. from his house but it is not mentioned in the arrestmemo whether it was 10:30 a.m. or 10:30 p.m. The undergarments of accused / appellant were taken into custody by the police on 14.04.2014. The Investigating Officer sent the clothes & undergarments of accused as well as of the prosecutrix for Forensic Science Laboratory and prepared the spot map and after investigation submitted the charge-sheet to the Special Judge, Dehradun, who in turn, took cognizance of the offences punishable under Sections 377, 354-A, 354-B read with Section 7/8 of POCSO Act, 2012. The report of Forensic Science Laboratory, Uttarakhand suggests that the semen and blood could not be detected at Ext. 1 & 2 sent for its examination. The Special Judge, Dehradun framed charges against accused / appellant for the offenses punishable under Sections 377, 354-A, 354-B of I.P.C. and Section 7/8 of POCSO Act, 2012.

(3.) The prosecution adduced as many as 09 witnesses. Complainant Smt. Kamla Devi was produced as PW1, who deposed that the prosecutrix was aged about 14 years and was studying in Class VII in Maheshanand Junior High School Majra, Dehradun. The incident took place on 13.04.2014 at about 8:30 p.m. when she went to supply the milk. When she came back at 9:00 p.m. to her house, she called her daughter. Upon her call, appellant came out from the bathroom and her daughter was weeping and she was naked. On asking from the girl, she told that her father has done something on her back and she was crying and saying that she is feeling pain. On asking from the accused / appellant, he said that he did nothing. Then, he was beaten and handed over to the police.