ROHITBHAI DHIRUBHAI LASANIYA VAGHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellant accused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 16.02.2017 passed by learned 2nd Additional Sessions Judge/Special Judge, Anand in Special (POCSO) Case No.13 of 2015, whereby the appellant-accused was convicted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code (herein after referred to as "IPC" for short) and under Section 6 read with Section 5(m) of the POCSO Act. By the impugned judgment, under Section 363 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of three years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 366 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of four years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 376 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of seven years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 6 read with Section 5(m) of the POCSO Act, the appellant was sentenced to undergo simple imprisonment for a period of ten years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed. All the sentences were ordered to run concurrently.

(2.) The case of the prosecution in short is that on 14.01.2015, since it was festival of Uttarayan and while the complainant-mother of the victim was in company of her husband who was present in the house and her children were playing outside the house; at around 4:00 p.m., one of her son namely Kartik rushed to her informing her that the victim is forcibly made to accompany one person. Soon thereafter, parents of the victim and other relatives went in search of the victim and at around 5:00 p.m., two of her relatives brought the victim and as people residing nearby the scene of offence ran after the person, he was soon caught hold of which later on revealed that it was none other than the present appellant-org.accused, resulting into the present appellant taken to police custody and when the victim was asked about as to what has happened to her, she disclosed the entire incident as to how she was made to accompany the appellant under pretext and the mode and manner in which she was subjected to forceful sexual intercourse by the appellant. Thereafter, an FIR came to be registered with Petlad Town Police Station by the mother of the victim.

(3.) At the outset of hearing, learned advocate Mr. Pratik Barot appearing for the appellant pointed out that learned trial court wrongly convicted the appellant-accused under Section 6 read with Section 5(m) of the POCSO Act and instead of that, he could have been tried for the offence punishable under Section 10 read with Section 9(m) of the POCSO Act, since, the Doctor who examined the victim has not at all corroborated the version of the prosecutrix-victim and clearly opined that her hymen was found intact and there was no penetration.