VILASBHAI BARSUBHAI KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellantaccused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 09.11.2017 passed by learned 3rd Additional Sessions Judge, Surat in Special POCSO Case No.188 of 2015, whereby the appellantaccused was convicted for the offence punishable under Sections 506(2) of the Indian Penal Code (herein after referred to as IPC for short) and under Section 3(b)(c), 4, 7 and 8 of the POCSO Act, 2012. By the impugned judgment, under Section 506(2) of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of two years and ordered to pay Rs.1,000/- fine and in default of payment of fine, simple imprisonment for a period of one month was imposed, under Section 3(b)(c) read with Section 4 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.3,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 7 read with Section 8 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and ordered to pay Rs.2,000/- fine and in default of payment of fine, simple imprisonment for a period of one month was imposed. All the sentences are ordered to run concurrently.

(2.) The case of the prosecution in short is that on 30.09.2015, at about 3:00 p.m., the appellant had taken the complainant's daughter-victim aged about 8 years behind the school and put finger in her private part and tried to physically abuse her and also threatened her not to tell about the said incident to anyone or else he will kill her. Therefore, the complaint was lodged with the police.

(3.) Learned advocate Mr. Utpal Panchal appearing for the appellant pointed out that learned trial court has wrongfully applied Section 4 read with Section 3 of the POCSO Act, 2012. As per the medical evidence available on record, there was no penetration, no injury was found either internal or external over the genitalia of the victim and at the most there may be offence of sexual assault only, according to his submission. He has prayed that since the accused is found to be indulging into the aforesaid offences and no aggravated offence is proved against the appellant-accused, in that view of the matter he will not challenge his conviction, but he will concentrate upon reduction of sentence taking into consideration the aforesaid provisions of law as well as during trial whatever the guilt is established against him.