VIPIN KUMAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Challenge in this appeal is to the judgment dated 21.7. 2015/22/7/2015 passed in Special Sessions Trial No. 77 of 2014, State Vs. Vipin Kumar, under Ss. 366 and 376 IPC and Sec. 6 of Protection of Children for Sexual Offences Act, 2012 (for short "POCSO Act) by the court of learned FTC/Additional Sessions Judge/ Special Judge POCSO, Rudrapur, District Udham Singh Nagar (for short "the case"), whereby the appellant has been convicted under Sec. 6 of the POCSO Act and under Ss. 366 and 376 (2) of IPC and sentenced as hereunder:-

(2.) Briefly stated, according to the prosecution, on 18/5/2014the victim aged nine years was playing near her house. The appellant was playing stunt on the cycle in the vicinity for the last 2-3 days, prior to the date of incident. On that day, at about 6:00-7:00 PM, the appellant under the pretext of offering her some eatables enticed the victim away. When the victim did not return, a search was made in the village, tempo stand, bus stand and finally the victim was located at the railway station in the midnight at 2:30 AM. When questioned, the victim revealed that the appellant took her near the railway bridge and in the bushes, after disrobing the victim, raped her. Thereafter, the appellant left the victim at the railway station and ran away. Report of the incident was lodged on 24/5/2014 at 12.30 at ROP Outpost ITI Police Station Kashipur. According to the FIR, due to shame and social stigma FIR could not be lodged at the earliest. But since, the victim had gone under depression, a report was lodged. Based on it, Case Crime No. 63 of 2014 under Sec. 376 IPC was lodged on the same day. The victim was medically examined on 24/5/2014 by PW3 Dr. Jugnu Govil. According to the Doctor, sexual contact was present; certain tests were prescribed. The victim had also undergone pathological tests; report received. On 3/6/2014, statement of the victim was recorded under Sec. 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The Investigating Officer also took into custody the underwear worn by the victim at the time of incident and prepared the memo of it and sent for forensic examination. Report of Forensic Science Laboratory was received, which confirmed the presence of blood on it. Site plan of the place of occurrence was prepared by the Investigating Officer and after investigation, charge sheet was submitted against the appellant under Sec. 376 IPC and Sec. 4 of the POCSO Act. Cognizance was taken.

(3.) Initially, on 28/8/2014, charge under Sec. 376 IPC and Sec. 3/4 of POCSO Act was framed against the appellant, to which, he denied and claimed trial. On 1/5/2015, the charges were amended and again charge under Sec. 376 and Sec. 6 of the POCSO Act was framed, to which, again appellant denied and claimed trial. On 15/7/2015, appellant was additionally charged for the offence under Sec. 366 IPC, to which, he denied and claimed trial.