CHANDAN MUKHIYA @ CHANNA MUKHIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In both the Appeals appellants were convicted and sentenced in POCSO Case No. 11 of 2016 by Sri Ranjan Kumar , learned Additional Sessions Judge - I, Supaul (Bihar) (hereinafter referred to as the "trial judge") , and as such, both Appeals were taken up together and are being disposed of by this common judgment.

(2.) Both the appellants were convicted on 03.02017 for commission of offence under Sections 341/ 376(D) of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C.") and Section 4 & 6 of Protection of Children From Sexual Offences Act, 2012 ( hereinafter referred to as the "POCSO Act" ) and by order dated 21.02017 both the appellants were sentenced to undergo rigorous imprisonment for twenty years for commission of offence under Section 376(D) of the I.P.C. and were imposed fine of Rs. 50, 000/- each. Under Section 4 of the POCSO Act they were sentenced to undergo imprisonment for seven years and to pay fine of Rs. 10, 000/- each. Under Section 6 of the POCSO Act both were sentenced to undergo imprisonment for ten years and to pay fine of Rs. 25, 000/- each. Surprisingly, though charge under Section 506 of the I.P.C. was not framed nor both appellants were held guilty for commission of offence under this Section, to the reasons best known to the learned trial judge both appellants were sentenced to undergo imprisonment for two years for commission of offence under Section 506 of the I.P.C. All the sentences were directed to run concurrently.

(3.) Short fact of the case is that on 04.02016 Sub Inspector of Police Smt. Premlata Bhupasri (P.W. 5) at 12.30 P.M. recorded fardbyan of victim aged about twelve years in Mahila Police Station Supaul. In the fardbyan victim disclosed that on 01.02016 at about 1.00 in the night she was witnessing a marriage in Shiv Mandir in her village with her other friends. After some time she went for urinating on Northern side. In the meanwhile, both the appellants namely: Naresh Mukhiya, S/o Sri Vishnudev Mukhiya in CR. APP (DB) No. 418 of 2017 and Chandan Mukhiya @ Channa Mukhiya , S/o Tetar Mukhiya in CR. APP (DB) No. 368 of 2017, both resident of village:- Belaganj, P.S.-Bhimpur, District - Supaul closed her mouth and taken her in the field of one Rajendra Mukhiya, and thereafter, they pushed cloth in her mouth and tied both the hands. After undressing, she alleged that she was raped one by one by both appellants and thereafter, threatened her not to disclose this fact to anyone. Anyhow, she could come near the shop of one Ramkishun Sah carrying her salwar in her hand. She was in pain and bleeding was going on. Thereafter, her neighbor namely Sulekha Devi (not examined) and Shobha Devi (P.W. 3) who were returning back after witnessing marriage came to her and the victim gave description of the entire occurrence to them. She claimed to identify both accused persons and shown those accused persons to those witnesses. Aforesaid two ladies tried to apprehend them but they were also assaulted by the accused and subsequently accused persons returned back with the member of barati. The victim was carried by both witnesses to her house and everything was disclosed to her grand mother (P.W. 1) . She disclosed that her father was doing labour work in Punjab and he had gone there. She claimed that she approached Mukhiya and Sarpanch without any result and her condition deteriorated and this was the reason for belatedly coming to Police Station. Fardbyan was read over to her and after finding it correct her mother Nirmala Devi (P.W. 2) and grand mother- Most. Lukhiya Devi (P.W. 1) put their L.T.I. and the victim put her signature on the fardbyan. On the basis of the said fardbyan on the same day i.e. on 04.02016 at about 12.30 P.M. a formal F.I.R. vide Mahila P.S. Supaul Case No. 20 of 2016 was registered for commission of offence under Sections 341/ 376(D) / 506 of the I.P.C. and Section 4/6 of the POCSO Act against both the appellants. During investigation, as per Police accusation was found true and on 31.02016 charge -sheet was submitted against both the accused persons. Thereafter, on 18.04.2016 learned Spl. Judge took cognizance of offences and on 4.6.2016 joint charge was framed against both appellants for offence under Sections 341, 376D of the I.P.C. and Section 4/6 of the POCSO Act.