BACHU Vs. STATE OF U P

JUDGEMENT

(1.) This appeal, under section 374(2) of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), has been filed by convict appellant Bachu @ Hira Lal, against judgment of conviction and sentence made therein, dated 20.10.2018, passed by Court of VIII Additional Sessions Judge, Aligarh, in S.T. No. 48 of 2015, State Vs. Bachu @ Hira Lal, arising out of Case Crime No. 320 of 2014, u/s 376, 506 I.P.C. read with Section 4 Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act) P.S. Chandaus, District Aligarh, wherein convict appellant has been convicted for offences punishable u/s 376, 506 I.P.C. with offence punishable u/s 4 of POCSO Act, 2012. But as the offence punishable u/s 4 of POCSO Act was aggravated form of offence punishable u/s 376 I.P.C., hence, sentence of 10 years R.I. with fine of Rs. 30,000/- and in default six months' additional imprisonment for offence punishable u/s 4 of POCSO Act with two years R.I. and fine of 10,000/- and in default three months' additional imprisonment for offence punishable u/s 506 I.P.C. with a direction for concurrent running of sentences and adjustment of previous sentence, if any, was awarded. Memo of appeal contains that the trial court failed to appreciate facts and law placed before it. Appellant was engaged as a contractor at Ganesh brickkiln. He had lent Rs. 35,000/- to informant, as advance, but she and her husband were not working properly. When pressure was exerted, this false concoction was lodged. Dr. Praveen Jahan (PW3), in her testimony, has held that hymen of victim was old torn. She was with no injury nor any spermatozoa was found in Pathological report. Alleged assault was of 30.11.2014, for which report was got lodged by way of presenting an application before the Senior Superintendent of Police, Aligarh, on 8.12.2014 i.e. nine days delayed report, with no explanation, was there. Investigation was not proper. Statement of owner of Ganesh Brickklin was not taken by Investigating Officer. All prosecution witness, examined, were interested witnesses. Impugned judgment of conviction was with no evidence on record and sentence awarded was much severe. Hence, this appeal with a prayer for setting aside the impugned judgment of conviction and sentence therein with a further prayer for acquittal in above trial.

(2.) Heard Sri Ashok Kumar Singh, learned counsel for appellant, and Sri Munne Lal, learned AGA for the State, and gone through the impugned judgment and record of trial court.

(3.) Learned counsel for appellant argued that it was a case based on enmity. F.I.R. was lodged at a delay of nine days. Medical evidence was not in support of accusation of rape. There was material contradiction regarding place of occurrence, wherein field of sugarcane and field of wheat was said by prosecution, which was with material contradiction. Statement recorded u/s 164 Cr.P.C., as of victim, was under influence of her parents, who were under debt of convict appellant for which this false accusation was lodged. Detention of four years six months in judicial prison is there. Hence sentence being deterrent and not in consonance with offence, above detention may be deemed to be proper sentence.