Judgement on Board

Per Ramesh Sinha, C.J.

1. This criminal appeal under Section 374(2) of the Code of Criminal VPDRE EAD WKAANSGHAN Procedure has been preferred by the appellant–Budhelal Bharti (in jail) DVDD11 Ei Ea g :t DW 2 i e t 8 : a AP :2 l 0 RN l 0 y 2 AG 2 sK +6A igA .0 N0 nS 53 eH 3. d 20 5 by a 0 s 7 s .0 a 7 il . in 20 g 2 1th e pa s ju s d e g d m b e y n t t h e o f l e c a o rn n e vi d c t A io d n d it a io n n d a l o S rd e e s r io o n f s s J e u n t e g n e c , e S e d c a o n d d Fast Track Special Court (POCSO Act), Durg (C.G.), in Special Sessions Case No. 39/2020, whereby the appellant has been convicted and sentenced in the following manner:

2. By the impugned judgment of conviction, the appellant has also been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POCSO Act’), but no separate sentence has been awarded for the offence under Section 4 of POCSO Act, as he has already been sentenced under Section 376 of IPC.

3. As per the case of the prosecution, on 30.05.2017, at about 15:15 Hrs, the mother of the victim (PW-2) lodged a missing report to the police that her minor daughter is missing since 10:00 AM on 30.05.2017 and her whereabouts could not be traced out. She suspected that the appellant who is also missing from the same time, had kidnapped her minor daughter. The police registered the FIR (exhibit P-6) for the offence under Section 363 of IPC against unknown person and started investigation. During the investigation, the victim recovered on 01.06.2017, from the possession of the appellant and recovery panchnama (exhibit P-1) was prepared. She was sent for her medical examination to Govt. Hospital, Supela, Bhilai, where he was medically examined by PW-5/Dr. Smt. Pushpanju Climis, who gave her report (exhibit P-14), who medically examining the victim, the doctor has not found any external injuries on her body, however mild redness was noticed in the vaginal wall with discharge present. She opined that the opinion can be given after bio-chemical examination report from FSL. He also referred her to Radiologist for age determination. Two slides of her vaginal swab were prepared, sealed and handed over to police for its FSL examination. Spot map (exhibit P-7) was prepared by the Police and exhibit P-11 was prepared by the Patwari. With respect to age and date of birth of the victim, the police has seized the school register vide seizure memo (exhibit P-32) and after retaining its attested true copy (Article-A), the original register was returned back to the school and as per the school register, her date of birth is 15.07.2002. The said school register is of class-9th. The victim was also sent for her x-ray examination for her age determination, which was conducted by PW-10/Dr. B.N. Dewangan. After the x-ray examination of the bones of the victim, he gave his report (exhibit P-3) and opined that the age of the victim is 15 ½ – 16 ½ years. The xerox copy of the birth certificate of the victim (exhibit P-10) has also been seized by the police. The appellant was arrested on 02.06.2017, he too was sent for his medical examination to Govt. Hospital, Supela, where he was medically examined by PW-6/Dr. Jalaj Goutam, who gave his report (exhibit P-16). While medically examining the victim, the doctor has not noticed any external injuries on his body and opined that he is able to do sexual intercourse. The underwear of the victim, vaginal slides and pubic heirs and underwear of the appellant were sent for its chemical examination to FSL Raipur, from where report (exhibit P-36) was received and semen and sperms were found on all the articles, except the pubic heirs of the victim (Article-C).

4. Statement of the witnesses under section 161 of CrPC and statement of the victim under section 164 of CrPC have been recorded and after completion of usual investigation, charge sheet was filed against the appe