Oral Judgment

30/11/2022

1. This appeal has been preferred against the judgment of conviction and order of sentence dated 28-11-2019 passed by the Special Judge, (Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as 'POCSO Act'), FTC, Kabirdham (CG) in Special Sessions Case No. 10/2019 whereby the appellant has been convicted and sentenced as under :-

2. As per prosecution case, on 6-1-2019 at about 17.30 hour, victim girl aged about 7 years was playing in front of her house along with other children. At that time, appellant called her and took her to agricultural field behind her house, laid her on the ground and putt off his trouser. At that time, the victim girl raised alarm/ shouted, hearing her shouting, her mother P.W. 5 went there and assaulted the appellant by means of wooden club twice. Thereafter, appellant fled from the spot. FIR Ex. P-2 was lodged on the same day at 21.05 hour by father (P.W. 1) of the victim (P.W. 2). During investigation, statement of witnesses were recorded, spot map Ex. P-3 and Ex. P-4 were prepared. Admission and Discharge register of the victim vide Ex. P-6 and Ex. P-7-C was seized. After investigation, charge sheet was filed against the appellant before learned trial Court.

3. Charges under Section 363 and 354 of the IPC and Section 10 of POCSO Act were framed. The appellant abjured the guilt. To bring home the guilt, prosecution examined as many as 9 witnesses and exhibited 12 documents. Statement of accused/appellant under Section 313 of the Cr.P.C. was recorded, wherein he stated that since he did not give Rs. 1 lakh which was sought as loan by father of the victim, therefore, he has been falsely implicated in this case. Appellant has not examined any witness in his defence. After hearing both the sides, learned trial Court vide impugned judgment, convicted and sentenced the appellant as mentioned in para 1 of this judgment.

Hence, this appeal.

4. Learned counsel for the appellant would submit that appellant has been falsely implicated in this case, as the victim girl has herself stated that earlier she ( Prosecutrix P.W. 2) and her mother (P.W. 5) did not know the appellant and at the time of incident, there was darkness. It is further submitted that learned trial Court has convicted the appellant only on the basis of evidence of interested witnesses i.e. victim girl (P.W. 2) and her mother (P.W. 5). There is no independent witness to prove the case of prosecution. It is further submitted that it is not a case punishable under Section 10 of the POCSO Act, as no sexual act is committed by the accused, hence assuming the facts as projected by the prosecution, to be true, at the most, it could be a case of only under Section 354 of the IPC. Hence the impugned judgment is liable to be set aside or it may be suitably modified.

5. On the other hand, learned counsel for the State supports the impugned judgment.

6. Heard learned counsel for the parties and perused the material available on record.

7. So far age of the victim is concerned, the trial Court has noted the apparent age of the victim in deposition sheet as 7 years. Father (P.W. 1) of the victim and her mother (P.W. 5) have stated that age of their victim daughter was 7 years, which is well supported by Admission and Discharge register (Ex. P-7-C), which has been proved by Dulesh Kumar Chandrakar (P.W. 4) who was teacher in Shriram Public School, Rabeli, Distt. Kabeerdham, in which victim girl studied in the year 2019. In Admission and Discharge register of the school Ex. P-7-C, date of birth of victim has been mentioned as 22-6-2011 and date of incident is 6-1-2019. Thus, as per school record also, at the time of incident, age of vic