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Judgment
Heard.
This appeal is preferred against the judgment dated 03.08.2021 passed by the learned Additional Sessions Judge (F.T.C.), Kondagaon, District - Kondagaon (C.G.) in POCSO Case No. 06/2019, wherein the appellant has been convicted under Sections 376, 506 of IPC and Section 6 of Protection of Children from Sexual Offences Act and sentenced as under:-
Offence Under Section
Sentence
Section 6 of POCSO Act and Section 376 of IPC
Life Imprisonment till the natural death and fine of Rs. 1,00,000/-, in default of payment of fine amount additional R.I. for 3 years.
Section 506 of IPC
R.I. for 3 years and fine of Rs. 1000/- in default of payment of fine amount additional R.I. for 06 months.
Both the sentences shall run concurrently.
Brief facts of this case are that complainant Sarita Banjari, Child Protection Welfare Officer (बाल संरक्षण अधिकारी, महिला एवं बाल विकास विभाग, नारायणपुर) lodged report on 21.08.2018 that during the period of 2015-2016 the appellant used to run ring shop in the village Fair (मेला), and for one week continuously committed forcefully sexual intercourse with the victim and after commission of offence extended threat that if she discloses the fact to any one she would be stabed. Based on such report the arrest of the appellant was made and identification parade was carried out and after recording the statement of the witnesses, charge-sheet was filed. The charges were framed against the appellant under Section 376, 506 of IPC & Section 6 of Protection of Children from Sexual Offence, Act.
During the course of trial, the appellant abjured his guilt and claim to be tried. The prosecution on their behalf examined as many as 12 witnesses After evaluating the evidence and statements the appellant was convicted for the offences as mentioned aforesaid. Being aggrieved by such order the accused/appellant filed this appeal.
Learned counsel for the appellant would submit that the appellant was falsely implicated and the FIR was delayed by 3 years. He would submit that the entire case is based on statement of the victim and the incident which took place prior to 3 years the authenticity and the medical report of the victim do not corroborate, therefore, the falsity of prosecution case comes to fore. He would further submit that the like nature of cases anybody could have been inculpated, therefore taking into the entirety of the case the judgment and conviction of the appellant is liable to be set aside.
Per contra, learned State counsel would submit that the victim when was subjected to sexual assault, was aged about 8-9 years and further threat was extended to her that in case of any disclosure of the fact she would face a dire consequence including threat to life and then she was in the protected custody. During the counseling she disclosed this incident of sexual assault. The counsel would submit such disclosure eventually lead to commission of the offence. He read out the statement of the victim to submit that nothing is on record to rebut the same to disbelieve. Consequently, the judgment and conviction passed by the learned Court below is well merited, and therefore do not call for any interference.
We have heard learned counsel for the parties at length and perused the statements and the evidence adduced by the prosecution.
The background of the facts would be that the victim was abandoned by her parents and she was given shelter at a relative’s house in village. At such village during the fair in the village the accused used to put up a ring shop. During such Fair in village, the accused used to stay at the home of relative of victim with 3-4 persons. The starting point to reveal the offence was disclosed to PW-2 (Smt. Laxmi Naidu), who was posted at Jagdalpur, Balika Grah from 07.09.2015 as a counselor. When the victim was lodged in such Balika Grah after she was abandoned and thrown out by the relatives during routine counseling on 22.12.2017 and 17.01.2018, the victim disclosed the incident. The victim revealed that the accused/appellant used to come to the village Fair every year and runs a ring shop. During such period, he used to stay for a week in the house of her maternal uncle at Bakharupara. It was during his stay while the victim used to be alone he committed sexual assault with the victim. After such disclosure it was informed by PW-2 to Bal Kalyan Samiti, Narayanpur who in turn came to Jagdalpur and took the victim to Narayanpur. Subsequently, a report was lodged after counseling with the victim. The statement of PW-2 is corroborated by the statement of PW-9 (Smt. Sarita Banjari) who was posted at Mahila & Bal Vikash Vibhag, Narayanpur since 2013. This witness PW-9 deposed that on 27.07.2017, the victim and her brother were brought by one Aganwadi Worker before the Bal Kalyan Samiti, where she was working as Nodal Officer. She stated during such period other members also present and when enquiry was made the victim told that mother and father of the victim and her brother were abandoned by them and they were living along with their maternal uncle named Santosh Koreti. The victim further disclosed the happening of the incident of sexual assault to her. The Bal Kalyan Samiti, Narayanpur had also inquired from the victim about the incident wherein she disclosed that in the year 2015-16 while she was residing with her maternal grandfather and uncle (ekek) during that period 5 people committed sexual assault on her and out of them one the present appellant, who used to run a ring shop in the village Fair and and used to stay in the house of her maternal uncle (ekek). PW-9, further states that the victim had disclosed that during 7 days of such stay whenever the accused/appellant used to come to home from the Fair he used to commit sexual assault.
Upon such disclosure it was informed to the Station House Officer, Narayanpur by letter dated 28.01.2018 Ex.-P/15 by PW-9. Based on that report FIR was registered on 28.01.2018. Thereafter the victim was subjected to medical examination and the document Ex.-P/17 would show that consent to get the victim examined by doctor was given by Nodal Officer of Bal Kalyan Samiti, which proves the fact that at that relevant point of time of disclosure she was in custody of the Bal Kalyan Samiti. Dr. Sakun Markam (PW-6) had examined the victim on 28.01.2018 and according to him, she was aged about 12 years at the time of examination and her hymen was ruptured and on enquiry she also disclosed that before the incident she was subjected to sexual intercourse. The report was given vide Ex.-P/10. According to the doctor though there was no recent intercourse.
The age of the victim is further corroborated by Dakhil-Kharij Register wherein the date of birth of the victim was shown to be 01.05.2007 and marked as Ex.-P/13-C. The Dakhil-Kharij Register is proved by PW-8, the head master of school. He deposed that date of birth of victim was of 01.05.2007 and she was admitted to class-I on 21.06.2013. Though PW-8 was not author of such document, but when the same is read along with statement of doctor PW-6 who examined the victim on 28.01.2018 found her of 12 years of age. The evidence of the doctor PW-6 and the Dakhil-Kharij Register Ex. -P-13 corroborates the fact about the age of the victim. In the cross-examination too, nothing has been elicited to demolish the age of the victim to establish that she was not a child. Therefore the evidence brought before the Court would show that on the date of examination of victim by doctor, she was minor of 12 years on 2018 the date of incident was stated to be of 2015-2016, therefore the assault would relate to 2-3 years back and cumulative examination would lead to show on the date of sexual assault the victim was a child below 18 years.
After the FIR and preliminary enquiry and after recording the statement of the victim under Section 161, the accused/appellant was arrested on 06.02.2019 vide Ex.-P/21. Subsequent to such arrest he was put to identification parade. The identification parade is filed as Ex.-P/12. The witness to this identification parade who conducted the same is Tahsildar (PW-12). According to the statement of PW-
12 on 06.02.2019 at Tahsil Office, Narayanpur, the accused was mixed in company of three persons and was put to identification. The victim thereafter identified the accused. The natural conduct of the victim to identify a person who was aged about 10-12 years at the time of identification corroborates the fact and inference can be drawn about the conduct that when a girl is subjected to such sexual assault by a person who was not a resident of local vicinity of village and was stranger, was identified, naming such person and identifying, would carry the weight without much suspicion.
Now coming back to the statement of victim (PW-7), she had deposed that at the time of incident one Fair (मेला) was going on in the village and she was alone in the house. The accused came to prepare his food and thereafter forcefully committed sexual assault and committed rape. After committing rape he extended threat that if she discloses this fact to anyone, he would stab her on the abdomen. The victim also deposed that in the year 2016 her maternal uncle threw them out from the house for the reason that they do not work thereafter they went to Narayanpur Anganwadi, and the Anganwadi madam sent them to Balika Grah, Jagdalpur. At Jagdalpur counseling took place. She further states that for the first time on 22.10.2017 during the counseling, she had disclosed the incident to madam Laxmi Naidu. She further states that apart from the accused- Shankar the another accused Cheeku, Aakash, Santosh and Sheru also committed forceful sexual intercourse with her in the year 2015. She stated that they stayed at Bakhrupara, Narayanpur and she had also disclosed this fact to her madam. In the cross-examination of this witness the suggestion was given that she has not disclosed the sexual assault to her family members. In response she states that threat was extended by accused that if she discloses the fact to the family members she would be killed, therefore, out of fear she has not disclosed to anyone. In the cross-examination of this witnesses (victim), she stood firm to her statement about the sexual assault by appellant.
So far as the delay in FIR is concerned, the circumstance would show that the victim and her brother were abandoned by her mother and father, therefore they were living with her maternal uncle (मामा) at Narayanpur. During stay at Narayanpur the victim was sexually assaulted when the accused/appellant had stayed in the same house for a temporary period while he was running a ring shop in the village Fair. Subsequently, the statement would show that the victim and her brother were pushed out of the house thereafter they took shelter in the Balika Grah, wherein during the counseling on two different dates she disclosed this fact to PW-2 (Laxmi Naidu). It is obvious, looking to the background of the victim and circumstances with prevailed and further considering her age it is obvious that when she felt little bit secured and safe, during her stay at Balika Grah, Jagdalpur, she revealed those facts of sexual assault. The statement made by the victim when evaluated with the circumstances of child, who were abandoned by their parents and living at mercy of some relative when after further abandonment came under safe shelter during counseling the sexual assault was disclosed. So the delay in FIR was reasonable. Therefore, we are of the view that the prosecution was able to prove the facts of sexual assault by the accused with the girl, a child who was aged about 8-9 years at the time of incident.
Having considered all the facts, we are of the view that no interference is called for in the order passed by the learned Court below. In the result the appeal fails and is accordingly dismissed.