IMPORTANT POINT
Sexual assault on girl child – Conviction and sentence has to be commensurate with degree of assault.

JUDGMENT

Pankaj Purohit, J.—This appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against judgment and order dated 22/23.05.2015, passed by learned Special Judge (POCSO)/F.T.C/Additional Sessions Judge, Haldwani in Sessions Trial No.99 of 2014, State Vs. Mohammad Aajam Khan, whereby the said court at the hands of trial has held the appellant guilty for the offence punishable under Section 376 (2) of IPC and also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “Act of 2012”) but with the aid of Section 42 of the Act of 2012 has sentenced him only under Section 376 (2) IPC to undergo 12 years rigorous imprisonment with a fine of Rs.10,000/- and in default of making payment of fine the appellant was further directed to undergo two months additional simple imprisonment.

2. Facts of the case in order to resolve the controversy are that a first information report of the occurrence was given by the mother of the victim at Police Station Mallital on 06.07.2014 at 02:30 P.M. with the averments that her daughter aged about six years is a student of Class 1. The occurrence is of 04.07.2014. On that day at about 03:30 P.M. when her daughter returned from school, she informed the informant that a person having a hump on his back held her daughter into his lap, took her into his room, removed her underwear and was trying to insert his private part into the private part of the victim. When the victim felt pain she told the appellant that she would narrate about this incident to her mother on which the appellant left her and closed the door.

3. With these averments chik F.I.R. was lodged and the investigation accordingly commenced. The Investigating Officer on completion of investigation submitted a charge-sheet against the appellant under Section 376 IPC as well as under Section 3/4 of the Act of 2012 in the court on which cognizance was taken by the court on 16.09.2014. According to the procedure prescribed under Section 207 Cr.P.C. the appellant was provided with copies of the prosecution evidence. Thereafter, a charge was framed against the appellant under Section 376(2) IPC as well as 6 of the Act of 2012. The appellant denied the charges and claimed to be tried. The prosecution in order to bring home the charges against the appellant produced as many as nine witnesses’ viz. P.W.1-L. Const. 765 CP Nanda Negi, P.W.2-Dr. Madhu Mathur, P.W.3-Victim, P.W.4-Victim’s mother, P.W.5-Dr. Rajesh Kumar Verma, P.W.6-Dr. Vinod Kumar Gadkoti, P.W.7-S.I. Rajendra Kumar, P.W.8-Dr. B.N. Pathak and P.W.9-S.I. Revti Pant and certain other documentary evidence were also produced in evidence.

4. Thereafter the statement of the appellant was recorded under Section 313 of Cr.P.C. The appellant in his statement while denying prosecution story stated that he did not commit any such offence and deposed that the victim was deposing falsely against him. Even after giving an opportunity, the appellant did not produce any witness in his defence and on 13.05.2015, by moving an application he refused to give any such evidence into his defence.

5. After hearing learned counsel for the parties and on examination of entire documentary and oral evidence available on record trial court proceeded to convict and sentence the appellant as mentioned in para no.1 of this judgment.

6. In this matter P.W.1.-L. Const. 765 CP Nanda Negi is a Police witness, who has proved about registration of the case and making entry into the General Diary.

7. P.W.2-Dr. Madhu Mathur is the Medical Officer who on the relevant date was posted in B.D. Pandey Hospital (Female), Nainital. She has proved about conducting the medical examination of the victim and has proved preparing a medical report in her own hand-writing, which is Ex. Ka-3 on record. She also referred the victim for the purpose of X-ray. On the basis of supplementary report of the v