Point of Law: In view of the special provision under section 42 of the POCSO Act, the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 of the POCSO Act but so far as punishment is concerned, the Court has to choose from the two which would obviously carry punishment of greater degree.

JUDGMENT :

S.K. SAHOO, J.

1. Sexual violence on children is the most terrifying ordeal and nastiest intensifying traumatic episode that take place in the lives of the victims and it causes such deep physical and psychological wounds and despair that it actually requires a brave and courageous effort on the part of the victims to overcome it and fight for justice. Sometimes the victims receive family support following disclosure about the crime committed on them and sometimes they are blamed by their family members. The family members sometimes even hesitate to proceed against the abuser for the sake of family prestige and social stigma. If there is lack of psychological support and care from family, the victims suffer a long term anxiety, depression, self-mutilation, interpersonal problems, post-traumatic stress disorder and they become entrenched and their progress towards development and peace get stalled. This case depicts how a three year old girl was lured and raped by a monster like the appellant in the absence of her parents at home by cunningly separating her from her brother.

The appellant Bhalu Murmu @ Galu faced trial in the Court of learned Special Judge-cum- Sessions Judge, Cuttack in G.R. Case No. 09 of 2014 for commission of offences punishable under section 376(2)(i) of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) on the accusation that on 21.12.2014 at about 1.30 p.m. he committed rape on the victim who was a girl aged about three years.

The learned trial Court vide impugned judgment and order dated 22.10.2016 found the appellant guilty under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs. 3,000/- (rupees three thousand), in default, to undergo further R.I. for a period of one year for the offence under section 376(2)(i) of the Indian Penal Code and rigorous imprisonment for a period of twelve years and to pay a fine of Rs. 3,000/- (three thousand), in default, to undergo further R.I. for a period of one year for the offence under section 6 of the POCSO Act and both the sentences were directed to run concurrently.

2. The prosecution case, in short, is that on 23.02.2014 one Shanti Bage (PW-4) presented a written report before the I.I.C. Khuntuni Police Station alleging therein that on 21.02.2014 at about 1.00 p.m. while her daughter (the victim), who was aged about three years was roaming in a nearby field, the appellant took the victim to his house luring her that he would give Namkeen Mixture to her and in his house, he committed rape on her. The victim returned home crying and told the incident to PW-4 that a person who is having an amputed hand committed rape on her. PW-4 took the victim with her to identify the culprit and the victim identified the appellant to be the person whose hand had been amputed to have raped her. PW-4 marked cut injuries on the private part of the victim and the victim was feeling severe pain while urinating.

On such report presented by PW-4, Khuntuni P.S. Case No. 14 dated 23.02.2014 was registered under sections 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. PW-9 Siba Charan Behera, Sub-Inspector of Police of Khuntuni Police Station took up investigation of the case in absence of the Inspector-in-charge. He examined the informant, visited the spot along with informant, prepared the spot map (Ext.12), conducted raid and apprehended the appellant and brought him to the police station. The wearing apparels of the victim as well as the appellant were seized under seizure lists Ext.3 and Ext.4 respectively and both of them were also sent to S.C.B. Medical College and Hospital, Cuttack for medical examination. The escort party produced the biological materials of the victim as well as the appellant collected by the doctor who medically examined them and those w