JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal has been preferred against the judgment and order dated 09.05.2016 passed in Sessions Trial No.36 of 2014, State vs. Ramchander by the Fast Track Court/Special Judge (POCSO)/ Addition District and Sessions Judge, Dehradun. By the impugned judgment and order, the appellant has been convicted under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (for short the “POCSO Act") and sentenced to imprisonment for life and a fine of Rs.50,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of one month.

2. The prosecution story briefly stated is hereunder:-

On 21.06.2014 at about 06:00 in the evening, the appellant took the victim, a handicapped girl of 11 years of age, under the pretext of taking her out for play, but she did not return for about 1-2 hours. A search was made by her father, the first informant PW1, her mother PW4 and other relatives, ward members etc. Appellant was seen indulging in “galat kaam" with the victim girl. On seeing the witnesses, appellant tried to run away but he was caught. The victim was bleeding from her vagina, she was taken to Government hospital. The appellant was beaten up by the public, which had gathered there. A report of this incident was lodged on 21.06.2014 at 09:20 p.m. at Police Station Rishikesh, which is 1 km. away from the place of incident. It has also come in evidence that the house of the appellant was near the house of the victim. The victim is not biological daughter of PW1. In fact, PW1 found her, when she was too young, at Triveni Ghat, Rishikesh. She had symptoms of polio; she was handicapped. At about 08:00 PM on the same day, she was medically examined by PW3 Dr. Nidhi Upadhyay. There were injuries on her vagina. Slides were taken for pathological examination; spermatozoa was detected in the slides. After radiological examination, her age was determined as below eleven years. During investigation, the clothes of the victim girl as well as the appellant and the bed-sheet, at which the offence was committed by the appellant in his house and the bed-sheet from the house of the victim, on which she was made to lay down after the incident, were taken into custody by the Investigating Officer. All these articles were sent for Forensic Science Examination. A report was also received. During investigation, statements of the victim girl were also recorded. Victim girl used to speak with lisp, therefore, during her examination under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code") a request was made that her mother may be permitted to accompany her. After investigation charge-sheet was submitted.

3. Cognizance was taken. On 14.10.2014 charges under Sections 376 IPC and 4/6 of the POCSO Act were leveled against the appellant, to which he pleaded not guilty and claimed to be tried.

4. In order to prove the case, prosecution examined 8 witnesses, namely, PW1 the father of the victim girl, PW2 the victim girl, PW3 Dr. Nidhi Upadhyay, PW4 mother of the victim girl, PW5 brother-in-law of the victim girl, PW6 sister of the victim girl, PW7 Constable Rukmani Gaur and PW8 S.I. Sangita.

5. Appellant was examined under Section 313 of the Code. According to him, the victim girl was tutored. He has been falsely implicated. He had a fight with the brother-in-law of the victim girl, therefore, he has been falsely implicated.

6. On behalf of the appellant, learned amicus curiae assisted the Court. Heard Mr. Trilochan Pandey, amicus curiae for the appellant and Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand.

7. Learned amicus curiae would argue that there is no independent witness to the incident. The independent witnesses, namely, Geeta and Savitri Pandey have not been examined; there is variation in the statements of the witnesses as to the time when the offence was committed; there have been a lot of in