JUDGMENT : 

Hon’ble Pankaj Purohit, J. (Per)

This Appeal is preferred by appellant from Jail assailing the judgment and order dated 15.11.2023, passed by learned FTC/Additional Sessions/Special Judge POCSO, Rudrapur, Udham Singh Nagar in Special Sessions Trial No.150 of 2019, State of Uttarakhand Vs. Manoj, whereby, the appellant-Manoj was convicted under Sections 376(2) and 506 IPC, and sentenced to undergo ten years’ rigorous imprisonment with fine of Rs.10,000/- with default stipulation further two months’ additional rigorous imprisonment under Section 376(2) IPC; two years’ rigorous imprisonment with fine of Rs.2,000/- with default stipulation further 15 days additional rigorous imprisonment under Section 506 IPC; the appellant was further convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, however, at the time of conviction, as per Section 376(2) IPC, the punishment prescribed for the offence is more severe than the POCSO Act, 2012 for similar aggravated offences; under Section 42 of the 2012 Act, where there is a conflict between punishments prescribed under IPC and POCSO Act, the greater punishment shall prevail. Therefore, since section 376(2) of IPC, 1860, prescribes a harsher punishment for the offence, the sentence has been imposed under section 376 (2) and no separate punishment has been awarded for the offence under section 6 of the POCSO Act, 2012. All the sentences were directed to run concurrently and any period of incarceration during trial shall be set off with the punishment.

2. According to the prosecution case, the victim, a minor girl who was the step-daughter of the accused- appellant, lodged a First Information Report at Kichha Police Station on 18.04.2019, alleging that on the night of 17.04.2019, her step-father had quarreled with her and thereafter committed rape and aggravated penetrative sexual assault. She reported the incident promptly the next day, seeking legal recourse. The Investigating Officer, based on the FIR, carried out a careful investigation. During this process, the victim’s clothes, vaginal swab, vaginal smear slide, and pubic hair were seized and sealed. The appellant was arrested, and his penile swabs, clothes and blood sample were collected under seal. A formal charge-sheet was filed under Sections 376(2), 323, 506 IPC and Section 5(l)(d)/6 of the POCSO Act. On 27.07.2019, the charges under Sections 376(2), 506 IPC and under Section 6 POCSO Act were framed upon appellant in the trial court and the appellant pleaded not guilty.

3. During trial, the prosecution examined as many as eight witnesses, namely, PW-1 Dr. Kanak Banodha, PW-2 the victim, PW-3 victim’s mother, PW-4 victim’s maternal uncle, PW-5 victim’s grandmother, PW-6 Smt. Sunita Yadav (teacher), PW-7 Sub-Inspector Babita Goswami, and PW-8 Head Constable Naresh Singh Samant. Additionally, the prosecution produced documentary evidence: medical report (Exhibit P-1), FIR (Exhibit P-2), victim’s statement recorded under Section 164 Cr.P.C. (Exhibit P-3), School/SR register (Exhibit P-4), arrest memo (Exhibit P-5), site-plan (Exhibit P-6), charge-sheet (Exhibit P-7), and the FSL/DNA report (Form 23A/6–23A/7).

4. Thereafter, the statement of accused-appellant was recorded under Section 313 Cr.P.C. in which he denied the allegations leveled against him by stating that he has falsely been implicated in a false case due to personal enmity and stated that he is innocent.

5. The following is a consolidated account of the testimonies of all the witnesses examined in this case:

• PW-1, Dr. Kanak Banodha, testified that she examined the victim on 18.04.2019. On external examination, she found no fresh external injuries but noted that the hymen was torn. With consent from the victim’s grandmother, she conducted an internal examination but observed no internal injuries. She stated that she sealed the vaginal swab, smears slide, pubic hair, and the victim’s clothes, and handed