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Judgment
Heard Mrs. Supriya Dayal Kashyap, learned counsel for the appellant and Mr. Santosh Kr. Shukla, learned counsel for the State.
The present appeal is directed against the Judgment of conviction and order of sentence dated 10.01.2019 passed by the learned Additional Sessions Judge – V -cum-Special Judge (POCSO), Jamshedpur, in G.R. (POCSO) No.3598 of 2014, arising out of Mango P.S. Case No.581 of 2014, whereby the appellant has been convicted for the offence under Section 8 of the Protection of Children from Sexual Offences Act (in short POCSO Act) and has been sentenced to undergo rigorous imprisonment for three years with fine of Rs.5,000/- (Five thousand) and in default thereof, he has been sentenced to further undergo imprisonment for a period of two months.
The prosecution story, in brief, is that on 11.11.2014 at about 12.00 noon, the daughter of informant (Victim "X" ) and one another girl was playing in side the boundary wall of house. The accused-appellant arrived there and told them to come with him and a snake will be shown. On that, both children went towards the field of paddy, which is about 500 meter in distance in the southern side of the house of informant. The said accused-appellant told to the children to sleep there and he opened their panty with bad intention. He started touching his own urinary part with them and discharged white substance. On that, these girls fled away crying from there upon which he thrown lathi on them to beat them. The daughter of informant (victim "X") and another girl child disclosed this fact to the informant.
On the basis of above written report of the informant, Mango P.S Case No.581 of 2014 dated 15.11.2014 was registered against the accused, under Sections 376/ 511 of the Indian Penal Code and Sections 4/ 8 of the POCSO Act. The police, after completing the investigation, has submitted the charge-sheet under Sections 376/ 511 of IPC and Sections 4/ 8 of the POCSO Act. The charge has been framed against the accused under Sections Sections 376/ 511 of IPC and Sections 4/ 8 of the POCSO Act on 16.10.2015 and the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.
To substantiate the charges, the prosecution has examined altogether 05 witnesses and their depositions, in short, are as follows :-
P.W.-1, "X", is a victim and upon her deposition, the appellant has been convicted for the offence under Section 8 of the POCSO Act. The deposition of the victim is quoted herein-below :-
"1.साक्षी के द्वारा प्रश्नों को समझकर समुचित उत्तर देने की क्षमता है, अतः साक्षी को साक्ष्य देने योग्य पाया जाता हैं ।
2.यह घटना दिनांक 11.11.2014 की दिन के 12 बजे की है उस मै घर मे थी और मेरे साथ सारा मोदक मेरी सहेली थी। आरोपी को देखकर साक्षी पहचान करता है तथा दादू के नाम से संबोधित करती हैं दादू बोले कि चलो सांप देखने तो हमलोग बोले की सांप देखने नहीं जायेगे। दादू बोला कि सांप बहुत बड़ा है तब हमलोग पीछे-पीछे गये। जब हमलोग सांप वहाँ नहीं देखे तथा भागने लगे तो दादू डंडा भेककर मारे। पैर में चोट लग गया और हमलोग गिर गये। हमलोग को ले गया और गमछा घेरा और हमलोग का चड्डी खोला और अपना भी चड्डी खोला अपना पेशाब करने वाला निकाला उजला-उजला गिरने लगा हमलोग उठकर भाग गये।
3.भागकर घर आये तथा अपने माँ को सारी बात बताये। पिता जी को भी बताये। माँ-पिता जी गये और केस किये, पुलिस आई थी और हमसे भी पूछ-ताछ किया था जज साहब के यहाँ भी मेरा बयान हुआ था।
4.मजिस्टेट साहब मेरी बात को लिखे थे अतः पढ़कर सुनाने पर मैने अपना हस्ताक्षर दो जगहो पर किया था। साक्षी के हस्ताक्षर को प्रदर्श-1 तथा प्रदर्श-1/1 अंकित किया गया।
प्रतिपरीक्षण वास्ते आरोपी
5.मै प्रतिदिन स्कूल जाती थी। मै दो बजे से पाँच बजे स्कूल जाती है। यह घटनास्थल मेरे घर के पास ही है। घटनास्थल पर मै पहले जाती थी बाद में छोड़ दिये।
6.मैं और मेरी सहेली तारा मंडल दोनो साथ में थी और दोनों वहाँ से साथ में भागे थे। हम दोनो अपना-अपना घर चले गये।
7.कोर्ट मे पुलिस ले गया था परन्तु बयान अपने से दिया था, पुलिस ने नहीं सिखाया था।
8.दादू का नाम डोमन यादव हैं। दादू का घर बहुत दूर में है यह कहना गलत है कि दादू का घर बगल में इसलिए पहचानती है। यह कहना गलत है कि मेरे साथ कोई घटना नहीं घटा था। यह कहना गलत है कि आज मै कोर्ट में झूठी गवाही दे रही हूँ।"
P.W.-2, is the mother of P.W.-1 (victim). She is not an eye witness, but her evidence is relevant under Section 6 of the Indian Evidence Act. To substantiate the case, she has clearly stated regarding the incident, as narrated by P.W.-1 and lodging of the F.I.R.
In cross-examination, she has stated that after narration of the contents of the F.I.R, she has made her thumb impression.
P.W.-3, is one of the victim, but she has been declared hostile.
In cross-examination, she has stated that no such incident has taken place.
P.W.-4, is the father of the P.W.-1. He is not an eye witness rather he is merely a hearsay witness and his evidence is of no use.
P.W.-5, is the Investigating Officer of the case. He has not stated anything to substantiate the case, but in cross-examination, he has stated that the statement recorded under Section 161 Cr.P.C, the mother of P.W.-1 has stated that she has lodged a false case.
The defence has also examined three witnesses, whose deposition, in short, are as follows :-
D.W.-1, is the father of P.W.-3 and he has stated that no such incident has taken place.
In cross-examination, he has stated that he has come to depose at the instance of the accused-appellant.
D.W.-2, is the mother of P.W.-3. She has stated that she has heard about the incident and she is only a hearsay witness, but she has not denied the incident.
D.W.-3, is a co-villager. He has stated that there was a commercial transaction between the parties and due to that, this false case has been lodged, but he is not a witness to any such incident.
On consideration of the above materials on record, the trial Court has found the accused-appellant guilty for the offence under Section 8 of the POCSO Act and sentenced him, as stated above.
Being aggrieved by the aforesaid judgment of conviction, the appellant has preferred the present appeal.
Learned counsel for the appellant, by referring to the materials available on record, has submitted that :-
there is delay in lodging of the F.I.R.
the incident has been denied by the co-victim i.e. P.W.-3.
as there is a commercial transaction between the parties, this false case has been lodged.
even the investigating officer has stated that in the statement recorded under under Section 161 Cr.P.C, the mother of P.W.-1 has stated that the false case has been lodged.
But from perusal of the case diary, it appears that no such statement has been recorded by the I.O regarding false accusation.
On the above grounds, learned counsel for the appellant has prayed for the judgment of acquittal.
On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence and it has been submitted that the sole deposition of the victim is enough for conviction. The evidence of the victim is reliable and that gets corroboration by the deposition of the I.O, who has clearly stated that the place of occurrence was an open place and the narration is matched with the materials available on record. It has also submitted that the D.W.-2 has stated that such incident has taken place although she is a hearsay witness.
Having heard learned counsel for the parties and from perusal of the record, it appears that the reliable material brought on record is the deposition of the victim i.e. P.W.-1 and from the statement of P.W.-1 and other witnesses also, I find that the statement given by P.W.-1 is quite reliable and gets corroboration regarding the circumstances i.e. the open place and other things, as deposed by the I.O as well as by the defence witness.
Considering the above facts, this Court finds that there is sufficient material available on record for conviction of the appellant under Section 8 of the POCSO Act. Accordingly, I find no reason to interfere with the Judgment of conviction and order of sentence dated 10.01.2019 passed by the learned Additional Sessions Judge – V -cum- Special Judge (POCSO), Jamshedpur, in G.R. (POCSO) No.3598 of 2014, arising out of Mango P.S. Case No.581 of 2014.
In the result, the appeal stands dismissed and accordingly disposed of.
The appellant is on bail, hence, his bail bond is, hereby, cancelled.
The trial court is directed to take all coercive steps for apprehending the appellant and committing him to the jail custody for serving out rest of the sentence.
Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.