Gautam Kumar Choudhary, J
1. The sole appellant is before this Court in appeal against the judgment of conviction and sentence under Sections 366, 376(2)(i), 377, 506 of the IPC and Section 6 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred in short as ‘POCSO Act’), in view of Section 42 of the POCSO Act, no separate sentence has been awarded under Section 6 of the POCSO Act.
2. Informant is the victim herself aged nine years whose fardbeyan was recorded by police on 03.07.2015 at around 17.45 hours. As per the FIR, she was sleeping with her parents in her house which is a thatched house without any door. In her deep sleep, suddenly, someone took her in his lap by gagging her face and took her about 1 Km. in the forest area near the river. She was assaulted, bitten, her under pant removed and raped. She suffered acute pain and there was bleeding from her anus and vagina. Thereafter, she became unconscious and then he fled away from there. She could not identify the accused, but has given his description as a bald person and about the height of her father.
3. On the basis of the fardbeyan, Dumaria P.S. Case No.7/15 was registered under Sections 366A, 376 of the IPC and Sections 3/4 of the POCSO Act against an unknown person. The incidence occurred in the intervening night of 2/3.07.2015 and the case was lodged on 03.07.2015. Another incidence took place after about 10-12 days in the same village when an attempt to commit rape was made. In the said incidence, jeans pant was left behind by the accused and from the driving license in the said pant, his identity could be established. It transpired during investigation that it was this appellant, who had committed rape with the victim in the present case.
4. Police on investigation, found the case true and submitted charge sheet against the appellant who was put on trial under Sections 366, 376(2)(i), 377, 506 of the IPC and Section 6 of the of the POCSO Act.
5. Altogether 13 witnesses have been examined on behalf of prosecution and the relevant documents including statement of witnesses recorded under Section 164 of the Cr.P.C., medical examination report of the victim and the accused, TIP chart, seizure list and FSL report, have been adduced into evidence and marked as Exhibit 1–11.
6. Judgment of conviction and sentence has been assailed on the ground that the incidence took place as per the prosecution case at night, when the victim girl was kidnapped and taken to the Jungle area. Accused, who committed the offence, was not identified by the victim and the case was lodged against unknown. It is argued that the appellant was implicated in another case of attempted rape which took place 10-12 days after the incidence of the present case. Mother of the victim (P.W. 6) in para 22 and 23 has specifically deposed that he was not identified by the victim when the appellant was arrested and therefore, his subsequent identification is not above board.
7. Learned A.P.P. for the State has defended the impugned judgment of conviction and sentence.
8. This is a case where the FIR has been lodged without any delay. The incidence took place in the intervening night of 2/3.07.2015 and the FIR has been lodged in the next morning on 03.07.2015.
9. Victim and her family members are unlettered, poor tribals and the prosecutrix has barely signed over the fardbeyan. From the description of the house in which the victim was living, it is a hay thatched house without even a door. There was no past enmity of the victim with the appellant and there is nothing on record to remotely suggest that the prosecutrix had any motive to falsely implicate the appellant. These are relevant factors in appreciation of evidence.
10. Victim aged 8-9 years has been examined as P.W.1 wherein she has deposed the manner in which she was kidnapped at night by an unknown person and rape was committed with her and identified the accused in dock. In Para 23, she has deposed that when he was running, she has seen his face. After the incidence of assault, she became unconscious. She regained her consciousness at the place of incidence itself. She has reiterated about the identification of the accused in para-45 of the cross-examination. In para-48, she has deposed that she had bitten on the hand of the accused and had also identified him in the jail.
This witness has not been confronted with the fardbeyan or her restatement given to the Police to elicit any contradiction. Her testimony is corroborated by the fardbeyan which was recorded by the Police and also by medical evidence.
11. The Doctor (P.W.8) who conducted the medical examination of the victim on 03.07.2015, has deposed that victim is 9 years old and noted scratch mark on the back of chest. Mild swelling on cheek and small swelling on posterior part of skull was also noted. Complain of pain around vulva and perianal area was made. Internal examination could not be done as victim was non-cooperative. Doctor opined that it cannot be confirmed whether rape was committed or not.
12. Merely because the victim refused the examination of internal parts of the body, it cannot be said that there was no medical evidence of rape for the reason that there were marks of scratches and swelling over her body. Even the defence witnesses i.e. D.W. 1 and D.W. 2 had admitted in their cross-examination that after the incidence, they went to the house of the victim and saw her frock to be soaked in blood. Considering the age and the background of the victim, her refusal to internal examination by the Doctor is understandable.
13. The victim has specifically deposed that she had bitten over the person who had committed rape. The appellant was examined by the Doctor (P.W. 9) on 17.07.2015 and medico legal examination has been proved and marked as Exhibit 6. As per the report, 1/2 cm sharp edged healing injury on the posterior of left little finger terminal phalanx was found. In para-16, he has deposed that he cannot say whether the injury was caused by teeth bite or not as it was in the process of filling.
14. Appellant has been identified by the victim in TIP held on 11.09.2015 and also in the Court. In view of the identification of the accused in the TIP as well as in the Court and further marks of injury present on the person of the appellant (Exhibit 6), establishes the identity of the appellant as the person who had abducted the minor and committed rape with her. The argument advanced on behalf of the appellant questioning the identification of the appellant is not sustainable and is accordingly, rejected.
15. Learned Trial Court has discussed in detail the evidence and the reasons for convicting the appellant. I do not find any infirmity in the impugned judgment of conviction and sentence. The impugned judgment of conviction and order of sentence is affirmed. Considering the age of the appellant, sentence under Section 376 of the IPC, is modified to RI for 20 years and a fine of Rs.10,000/-. In default of payment of fine, one month SI.
Accordingly, the instant Criminal Appeal stands dismissed with modification of sentence.
Let a copy of this judgment be sent to the concerned Trial Court at once.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
