Dan Bag vs State Of Jharkhand

Heard the parties.

The appellant has preferred these appeals against the Judgment of Conviction dated 23.12.2016 and Order of Sentence dated 02.01.2017 passed by the Additional Sessions Judge-I-cum-Special Court, Jamshedpur in Sessions Trial No. 73 of 2014, whereby the appellant has been held guilty and convicted for the offence punishable under Section 376 of Indian Penal Code and Sections 4 and 8 of POCSO Act and he has been sentenced to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- for the offence under Section 8 of POCSO Act and rigorous imprisonment for ten years and a fine of Rs.10,000/- for the offence under Section 4 of POCSO Act. Both the sentences were ordered to run concurrently.

Mr. Aushutosh Mishra, learned counsel for the appellant, submits that there is eight days in lodging the FIR without any explanation. He further submits that it has been come in the evidence that the relationship between the appellant and the family members of the victim was cordial. He argues that since the doctor has found no injury on the private part of the girl, therefore oral evidence regarding rape is not substantiated.

Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that in the FIR, the mother has categorically stated that she had seen the incident and she had supported the same as PW3. He further contends that though the doctor has stated that he has not found the injury on the body of the victim but from his report, it will be clear that some injury was found in the genital of the girl.

The FIR is at the instance of PW3. She stated that her daughter was missing as such she went for searching her and during course of search, she saw the victim in the house of the appellant. The appellant was fully undressed and was committing rape upon the girl.

On that basis, Musabani P.S. Case No. 34 of 2013 was registered under Section 376 of IPC and Sections 4 and 8 of POCSO Act. Police after conclusion of investigation filed charge sheet against the appellant under Section 376 of IPC and Sections 4 and 8 of POCSO Act and he was put on trial.

After the charge was framed, the prosecution, in order to prove the case has examined 5 witnesses. Relevant documents were also exhibited. After recording the statement of the accused under Section 313 of Cr.P.C., defence is of innocence.

Trial Court found the appellant to be guilty for offence Section 376 of IPC and Sections 4 and 8 of POCSO Act and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- for the offence under Section 8 of POCSO Act and rigorous imprisonment for ten years and a fine of Rs.10,000/- for the offence under Section 4 of POCSO Act.

After hearing the parties, we have gone through the judgment, documents and exhibits. The informant had stated that this appellant came and took her daughter in his house to watch television. This is evident from paragraph 3 of the deposition of PW3. She further stated that she went to bring her daughter and saw that this appellant was committing rape upon her. Though in the FIR, she had stated that her girl was missing but in her evidence she stated that the girl was taken by the appellant. The victim girl is PW 5. She also stated that after taking her to his house, this appellant committed wrong with her.

The doctor, who is PW1, did not find any penetrative sexual assault upon the girl. Though he stated that he did not found any injury on the body of the girl except in the genital but surprisingly, what was the injury on genital has not been mentioned in the injury report.

From the evidence, we find that no aggravated penetrative sexual assault has taken place in this case. From the evidence of the doctor, we find that no penetration had taken place. This case is of sexual assault which is covered under Section 7 of the POCSO Act. Thus, the appellant cannot be convicted under Section 376 of IPC but we find that there was sexual assault and an attempt to commit rape was made which will be covered under Section 376/511 of IPC.

In view of the aforesaid consideration, we convict the appellant for committing offence under Section 8 of the POCSO Act and also under Sections 376/511 of IPC. The appellant is sentenced to undergo rigorous imprisonment for five years each under Section 8 of POCSO Act and Sections 376/511 of IPC. He has already served sentence of ten years and was released from custody, therefore, no separate fine amount has been imposed with this substantive sentence.

This criminal appeal is dismissed with the aforesaid modification in finding and sentence.

Pending I.A., if any, stands disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.