THAKOR KARANJI SOMAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, the challenge has been made to the judgment and order of conviction passed by the learned Additional Sessions Judge and Special Judge (POCSO), Mehsana ('trial Court' for short), in Special POCSO case No. 2 of 2016, Dated: 28.09.2017, whereby, the trial Court convicted the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code, 1860, and sentenced him to undergo imprisonment for a period of five years and to pay fine of Rs.5,000/- and in default to undergo further simple imprisonment for one year, whereas, under Section 354 of the IPC, he is sentenced to undergo imprisonment for a period of three years and to pay fine of Rs.1,000/- and in default, to undergo further simple imprisonment for two years, under Section 363 of the IPC to undergo imprisonment for a period of 7 years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for two years, whereas, under Section 366 of the IPC to under go simple imprisonment for 10 years and to fine of Rs.1,000/- and in default to undergo further simple imprisonment for two years. The appellant is also punished for a period of three years for the offence under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in brief, 'POCSO Act') and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one year, whereas, for the offence under Section 12 of the POCSO Act to undergo simple imprisonment for three years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one years.

(2.) It is the case of the prosecution that the mother of the prosecutrix on 31.10.2015 lodged an FIR inter alia stating that her daughter aged 8 years was taken away from the custody of her parents without their consent by the appellant accused. She and her husband had gone out and they returned at around 07:00 hours in the evening. It was communicated to her that Thakor Karanji, i.e. the present appellant, had taken away the prosecutrix to the agricultural field, where, he had attempted to commit an act of rape, when Bharatbhai Narottambhai Patel, owner of the adjoining field had seen the appellant and the girl and he had brought the prosecutrix home from the field. On inquiry, the prosecutrix had conveyed that Karan uncle had told that the buffalo was needed to be tied and therefore, she was asked to accompany to the agricultural field, where, she was asked to lay down by the appellant. When she refused, she was slapped by the appellant. The appellant, then, removed her pajama and when she started crying, Patel Bharatbhai came there and scolded the appellant, as to why he had brought the prosecutrix there.

(3.) Learned Advocate, Mr. Y.M. Thakor, appearing for the appellant has strongly argued before this Court that the prosecution has not succeeded in proving the fact of sexual molestation much less the act of rape, as alleged. He also, further, urged that the evidence of the prosecutrix as well as of the doctor if is considered, there is no injury on the private part of the prosecutrix found. Again, according to him, except,the prosecutrix none was present and therefore also, the evidence of none of the witnesses would have any bearing on the subject. The IO also had not examined any person in the vicinity, where the incident had occurred. Out of the personal enmity of the parents of the prosecutrix with the appellant, he has been falsely roped in. A Social Worker, namely Varshaben Patel, in whose presence statement of the prosecutrix was recorded, was neither examined nor her statement has been recorded.