MUKESH SHARMA @ MUKESH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment of conviction dtd. 4/11/2015 and order of sentence dtd. 9/11/2015 passed by the court of learned Additional Sessions Judge-I- cum- Special Judge, Supaul, in POCSO Trial No. 17/14 arising out of Supaul Mahila P.S. Case No. 59/14 whereby and whereunder the appellant has been convicted for the offences punishable under Ss. 366, 376 and 323 of the Indian Penal Code (in short 'IPC') and acquitted of the charged offences under Ss. 366- A and 506 of IPC and Sec. 4 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). The appellant has been sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.10,000.00 separately for the offences under Ss. 376 and 366 of IPC each, and in default of payment of fine, he has been directed to undergo simple imprisonment for one year additionally. For the offence under Sec. 323 of IPC, the appellant has been sentenced to undergo rigorous imprisonment for one year. All the sentences of imprisonment have been directed to run concurrently. Prosecution Story:-

(2.) The prosecution case as appears from the complaint petition of complaint case bearing no. 438C/2014 filed by the complainant in the court of CJM, Supaul which is the basis of the institution of the prosecution's case, in brief, is that on 3/4/2014 at about 7:00- 7:30 p.m., when the informant/victim namely, 'N' (hereinafter referred to as 'N') who is said to be the minor daughter of 'M' (the real names of victim and her father withheld in order to conceal the identity of the informant/victim), went to the back side of the Utkramit Madhya Vidyalaya, Bijalpur Bakaur to ease herself, then her co-villager Mukesh Sharma (appellant) with the help of his three unknown associates caught hold of her and they gagged her mouth forcibly and then took her towards the east embankment of river Koshi situated nearby where at the point of pistol made her sit in a tempo and took her via Panchgachhiya Railway Station to the house of his cousin situated in a village and confined her there in a room and in the night, he committed rape with her. During the course of committing rape, the appellant also assaulted her when she raised her protest and in the early morning he with the help of his associates took her to Saharsa Railway Station by a train. At the railway station upon seeing her co- villagers, she raised an alarm then upon hearing her alarm her co- villagers namely, Ajeet Mahto, Hare Ram Mahto and Satya Narayan Mahto and others rescued her but the accused/appellant Mukesh and his associates fled away thereafter, her co-villagers took her back to her house. As per the victim, at the time of occurrence her father was not present in her village, and after his returning back to home his father convened a Panchayat Meeting in the village but the accused refused to attend the said Panchayat so, she had to approach the police but as the police were adopting dilatory tactics in this regard, so, she filed her complaint in the court.

(3.) On the basis of complaint petition of the victim sent under Sec. 156(3) of Cr.P.C., to the concerned Police Station for investigation, Supaul Mahila P.S. Case No. 59 of 2014 was registered for the offences under Ss. 323, 376, 506, 366A of IPC and Sec. 4 of the POCSO Act on 2/6/2014 and a formal FIR was drawn up against the appellant and his three unknown associates. After investigation, the police chargesheeted only the appellant for the offences under Ss. 366-A and 376 of IPC only. But differing with the police conclusion, cognizance of the offence under Sec. 4 of the POCSO Act besides other offences punishable under Ss. 366-A and 376 of IPC was also taken against the appellant by the trial court.