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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Mohd. Aslam, J.
Amrita Nand @ Tribhuvan Arjariya @ Baba – Appellant
Versus
State of U.P. and Another - Respondents
Criminal Appeal No. 3169 of 2020
Decided On : 03-03-2022
POCSO Act - Sections 8, 10 – Indian Penal Code, 1860 - Sections 376 and 511 – Criminal Procedure code, 1973 - Section 374(2) - Evidence Act - Section 374(2) - Sexual Offence - Allegation that on 22.8.2015 at 05:00 p.m., his daughter victim X aged about 4 years was playing in front of the house – Accused aged about 60 years, who is his neighbourer called Baba by people of the locality, called his daughter victim X and gave her toffee and took her inside his house and tried to commit bad act with her - facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant – Para 40.
Finding of the Court:
Accused has touched her private parts and clarified that accused has touched her urinal place (susu) with his finger. She has further stated that accused has also put off her clothes - She has also corroborated the testimony given under Section 164 Cr.P.C. and deposition in cross examination that the police inquired from her and her mother and father gave her pajama to police. She has also corroborated in her cross examination that Baba has taken off her clothes and she has not urinated there - Further she has stated that she was told by his father and mother what statement she has given - It is quite apparent that the mother and father and the counsel may, to create confidence in the mind of a child witness, inquire her regarding what evidence she has to give, it cannot be said that she is tutored witness. She has supported the entire incident and told the entire incident to her mother, which was testified by her mother, which is admissible under Section 8 of the Evidence Act - On day of occurrence informant was not at his house and has gone to Kanpur to take raw material for preparing ornaments and when he returned from there, thereafter, on the next day the first information report was lodged, therefore, sufficient explanation has been given by prosecution regarding delay in lodging the first information report.
Result: Appeal is dismissed.
JUDGMENT :
1. Heard Sri Brijesh Sahai, Senior Counsel assisted by Sri Ram Krishna Chaurasia, learned counsel for the accused-appellant, learned A.G.A. for the State and perused the record.
2. The instant appeal has been moved by accused-appellant under Section 374(2) of Cr.P.C. against the impugned judgment of conviction and order of sentence dated 21.10.2020 passed by Additional Sessions Judge-IV/Special Judge (POCSO Act), Banda in Special Case No.68 of 2015 (State Vs. Amrita Nand @ Tribhuvan Arjariya), arising out of Crime No.617 of 2015, under Sections 376, 511 I.P.C. & Sections 8, 10 of POCSO Act, P.S. Kotwali Nagar, Banda, by which the accused-appellant has been convicted under Section 10 of POCSO Act and was sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs.10,000/-under Section 10 of POCSO Act, in default thereof, to further undergo simple imprisonment for two months.
3. The brief facts necessary for disposal of this appeal is that informant Avadhesh Kumar Soni son of Raja Ram Soni resident of Chhoti Bazar, Thatharahi, Police Station Kotwali Nagar, District Banda has lodged a first information report on 23.8.2015 at 20:50 p.m. at Police Station Kotwali Nagar on the basis of written complaint with the allegation that on 22.8.2015 at 05:00 p.m., his daughter victim X aged about 4 years was playing in front of the house. The accused Amrita Nand @ Tribhuvan Arjariya aged about 60 years, who is his neighbourer called Baba by the people of the locality, called his daughter victim X and gave her toffee and took her inside his house and tried to commit bad act with her. On being called by the mother of the victim X in high pitch, she was driven out by the accused from his house and the victim X after coming to her mother narrated the entire incident to her mother. After that Smt. Khusbu wife of the informant visited the accused and asked him that what you have done uncle with her daughter, thereafter, he locked his house and went somewhere else and did not return back to his house. The informant requested that his first information report be lodged and necessary action be taken against the accused.
4. Head Constable Moharrir Ram Prasad Pal has scribed the check of Crime No.617 of 2015 against the accused Amrita Nand @ Tribhuvan Arjariya for offence punishable under Section 376, 511 I.P.C. and Section 4 of POCSO Act. The investigation was given to S.I. Ram Babu Yadav. He went to Lucknow on account of Government work, therefore, the investigation was conducted by S.S.I. Pankaj Kumar Pandey on behalf of S.I. Ram Babu Yadav and the case was registered on 23.8.2015. He copied the check report and GD entry no.64 at 20:50 p.m. in CD on 23.8.2015 and has recorded the statement of check scriber and GD writer Head Constable Moharrir Ram Prasad Pal and also recorded the statement of Ct. Shashank/Computer Operator, who scribed the check at the direction of Head Constable Moharrir Ram Prasad Pal. The statement of victim X was recorded by S.O. Reeta Singh under the videography. On the same day, he recorded the statement of informant Avadhesh Kumar Soni and has taken the Chaddhi (underwear) of cream colour in police custody and prepared memo of the same in presence of the witnesses Rajan Sen and Kalpana Singh. He also copied the memo of taking Chaddhi in police possession in CD on the same day.
5. The victim X was medically examined by Dr. Usha Singh (PW-5) at District Women Hospital, Banda on 23.8.2015, where she has stated to the doctor that on 22.8.2015 at 05:00 p.m. the accused by giving allurement of toffee took her inside his house and tried to commit bad deed with her. No mark of any injury was found on the body of the victim X and her clothes were sealed and sent to the police station. Dr. Usha Singh (PW-5) has prepared medical report at the time of medical examination. On 25.8.2015, the medical report of the victim X was copied and on return of S.I. Ram Babu Yadav from Lucknow the investigation was resumed on 27.8.2
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