C A V Judgment

Per Sanjay S. Agrawal, J.

1. This criminal appeal is preferred by the accused under Section 374(2) of the Code of Criminal Procedure, 1973, questioning the judgment of conviction and order of sentence dated 14.10.2020 passed by the Additional Sessions Judge, First Fast Track Special Court, Raipur in Special Criminal Case No. 131/2019, whereby, the appellant-Anil Bande has been convicted and sentenced as under:-

CONVICTION SENTENCE U/s 363 R/w Section 34 of Indian R.I. for 2 years and fine of Rs.500/- in Penal Code default of payment of fine additional R.I. for 15 days.

U/s 366 R/w Section 34 of Indian R.I. for 3 years and fine of Rs.1,000/-

Penal Code in default of payment of fine additional R.I. for 1 month.

U/s 376(3) of Indian Penal Code R.I. for 20 years and fine of Rs.50,000/- in default of payment of fine additional R.I. for 6 months U/s 376(2)(ढ) of Indian Penal Code R.I. for 10 years and fine of Rs.

5,000/- in default of payment of fine additional R.I. for 3 months All the sentences were directed to run concurrently.

2. Briefly stated the facts of the case are that on 12.07.2019, the father of the prosecutrix lodged a report before Police Station- Khauli, District Raipur in connection with Crime No. 291/2019, alleging inter alia, that his daughter had slept in the house of his brother on 10.07.2019, but on the next day morning, she was found to be gone somewhere else without intimating anyone of the family members, which compelled him for lodging of the alleged report against an unknown person and based upon which, an offence punishable under Section 363 of IPC has been registered. Further prosecution story is that during investigation, she appeared before the Police Station along with her relatives and narrated the story by saying that on the fateful day, i.e. 10.07.2019, at 10.30 pm, the appellant-Anil Bande and his cousin, namely, Harish Kumar Bandhe, while alluring her to solemnize the marriage, took her on the motorcycle to Village- Kurud, where, she stayed with them at night and on the next day, the cousin of Anil Bande, namely, Harish Kumar Bandhe dropped them at Tilda Railway Station and from there, they went to Village- Pendri via Bilaspur and stayed there for 04 days in the house of one Nankuram, who was familiar with said Anil Bande. She narrated further that thereafter, they went to Village- Sankra and during these periods, the appellant- Anil Bande has committed forceful sexual intercourse with her. After recording her statement, the offence punishable under Sections 363, 366 and 376(3) read with Section 34 of IPC has been registered against them along with an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012(for short ‘the POCSO Act’), as during the investigation, she was found to be minor aged about 15 years old. The appellants have accordingly, been arrested on 21.07.2019. The prosecutrix was sent for medical examination and Dr. Smt. Rajshree Devdhar (PW-3), who examined her on 21.07.2019 has recommended for U.P.T. test in order to determine her age vide Ex. P-11 and the statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 22.07.2019. For collecting the information regarding her age, ‘Dakhil Kharij’ Register (Ex.P-6-C) was seized from the Principal of the concerned School vide Ex. P-9 and after collecting the vaginal slide and her underwear vis-a-vis the underwear of the appellant-Anil Bande vide Ex.P-31 and Ex.P-24, respectively, the same were sent for chemical examination and vide FSL report (Ex.P-42), it was found to be proved positive and that by taking a thorough investigation, a final report while registering the offence mentioned herein above against them has been filed and vide order dated 14.10.2019, the appellant-Anil Bande has been charged with offences punishable under Sections 363, 366 read with Section 34 of IPC and Sections 376(3) and 376(2)(n) of IPC along with Section 6 of the POCSO Act, while his cousin- Harish ha