HEERA KOL Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Anil Kumar Ojha, learned counsel for the appellant, Sri Nagendra Kumar Srivastava, learned A.G.A. for the State and perused the records.

(2.) The present criminal appeal has arisen from the judgment and order of conviction dtd. 29/9/2022 passed by Ms. Niharika Chauhan, learned Additional District and Sessions Judge/Special Judge (P.O.C.S.O.), Sonbhadra in Special Trial (P.O.C.S.O. Act 2012) No.37 of 2017 (State Vs. Heera Kol), arising out of Case Crime No.121 of 2017, under Sec. 376 (2)(i) I.P.C. and Sec. 5(m)/6 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as P.O.C.S.O. Act), Police Station-Ghorawal, District-Sonbhadra, convicting the accused appellant-Heera Kol and sentencing him to undergo life imprisonment with the fine of Rs.50,000.00 for the offence under Sec. 6 P.O.C.S.O. Act and in default of payment the appellant shall undergo additional imprisonment for one year.

(3.) Prosecution story emerged on the Written Report dtd. 2/7/2017 (exhibited as Ex.Ka.1 at the trial) lodged by the first informant-'K' (P.W.-1 at the trial), who is the maternal grand father of the victim 'P'. In that it was narrated that on 1/7/2017 at about 6.00 p.m. his maternal grand daughter 'P' (P.W.-2 at the trial) had gone to a near by hand-pump, to fetch water in a plastic vessel. There, the present appellant was present from before. He took off the underwear of 'P' and rubbed her body parts inappropriately ("sehlane laga"), while 'P' was working the hand pump. On witnessing the same, children and other persons present at that place of occurrence, raised an alarm. At that, 'K' ran up to the place of occurrence. The appellant tried to flee but was apprehended by 'K'. The police was informed on the Police Helpline number 100. The F.I.R. was registered, the next day, on 2/7/2017 at about 3.55 p.m. It is exhibited as Ex.Ka.3 at the trial. 'P' was subjected to Medico Legal Examination (exhibited as Ex.Ka.7 at the trial) conducted at 01.00 p.m. by Dr. Geeta Jaiswar (P.W.-6 at the trial). She stated, no injury whatsoever was noted by her, on 'P'. After more than a month from the occurrence, the statement of the victim was recorded under Sec. 164 Cr.P.C. on 18/8/2017. It is exhibited as Ex.Ka.2 at the trial. In that, she narrated that the appellant had removed her underwear; flashed his penis; spoke words expressing his intent to commit "penetrative sexual assault" on 'P' and, lifted her in his lap. On being further questioned, she stated, the appellant had flashed his penis at her. No other or further statement was made by her, at that stage to indicate commission of any act amounting to "penetrative sexual assault", by the appellant.