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2016 DIGILAW 747 (UTT)

Chandan Giri Mahant v. State of Uttarakhand

2016-10-20

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. Present appeal is instituted against the judgment and order dated 01.02.2016/06.02.2016, passed by the Special Judge, POCSO, Almora, in Special Sessions Trial No.17 of 2015, whereby the accused/appellant, who was charged with and tried for the offences under Section 363, 366, 376(2)(i) of the I.P.C. and Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as ‘the POCSO Act’), was convicted for the offences of Section 376(2)(i) IPC and Section 3 r/w Section 4 of the POCSO Act, but he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for a further period of two months, only under Section 4 of the POCSO Act. 2. Appellant/accused was, however, acquitted from the charge of offence punishable under Sections 363 and 366 of the I.P.C. 3. Case of the prosecution, in a nutshell, is that the maternal uncle of the prosecutrix moved an application Ex.Ka-3 to Station Officer, Dwarahat, informing that his niece (name withheld) was about 16 years of age. She was a student of Class XII studying in Government Inter College, Kausani; she had gone to attend the NCC Camp on 04.07.2015. He enquired from one Ms. Nirmala Rawat, who told him that his niece (the victim), after moving an application to the authority concerned, left the camp with the accused Mahant Chandan Giri. He came to know that the accused, along with the victim, stayed in Hotel Trishool at Gwaldam on 12.07.2015 as husband and wife. 4. On the basis of complaint Ex.Ka-3, the FIR was registered and the matter was investigated. After completion of investigation, Challan was put up before the court after doing all the codal formalities. 5. In order to prove its case, the prosecution has examined as many as ten witnesses. 6. Statement of accused was also recorded under Section 313 Cr.P.C. He denied the charges and claimed to be tried. 7. After conclusion of the trial, appellant was convicted and sentenced as noticed hereinabove. 8. Mr. M.C. Kandpal, learned Senior Advocate, appearing for the appellant, has vehemently argued that the prosecution has failed to prove its case against the accused. 9. Mr. P.S. Saun, learned Deputy Advocate General, has supported the impugned judgment. 10. 7. After conclusion of the trial, appellant was convicted and sentenced as noticed hereinabove. 8. Mr. M.C. Kandpal, learned Senior Advocate, appearing for the appellant, has vehemently argued that the prosecution has failed to prove its case against the accused. 9. Mr. P.S. Saun, learned Deputy Advocate General, has supported the impugned judgment. 10. I have heard learned Advocates and gone through the judgment on record meticulously. 11. PW1 is the prosecutrix. According to the prosecutrix, the accused took her away on his motorcycle to Karanprayag. In the night, they stayed in a hotel. The accused misbehaved with her. He offered to marry her. In the morning, he took her away to Joshimath, where, in a hotel, the accused sexually harassed her. In Joshimath, the accused went to a temple and informed her that the Baba was not available. Thereafter, they went to Badrinath, where they stayed in a hotel. They also stayed in a hotel at Bageshwar. Thereafter, she was taken to Pithoragarh. The prosecutrix remained with the accused with effect from 10.07.2015 to 20.07.2015. They stayed in different hotels. PW-1 has categorically deposed in her statement that the accused has sexually assaulted her at Bageshwar. 12. PW-4 Narendra Singh, the employee of Hotel Pryagraj at Karayprayag, has supported the version of PW1. The statement of PW1 is also corroborated by the statement of PW6 Krishna Kumar, Manager of Hotel Prashant, Bageshwar. 13. The hymen of the prosecutrix was found ruptured, as stated by PW 7 Dr. Santosh. According to him, the age of the prosecutrix was 16 years. He has conducted two-finger test on the prosecturix. This test is against the law laid down by Their Lordships of the Supreme Court in the case of ‘Lillu allias Rajesh and another Vs. State of Haryana’ 2013 Volume 14 SCC Page 643. 14. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C., wherein she has categorically stated her age to be 16 years. 15. PW3 Upendra Singh, Principal, Government Inter College, Kausani has proved the date of birth of victim as 12.07.1999. In the ossification test also, the age of the prosecutrix was found to be 16 years. PW2 Naveen Goswami (maternal uncle) of the prosecutrix/victim also disclosed her age as 16 years. 16. 15. PW3 Upendra Singh, Principal, Government Inter College, Kausani has proved the date of birth of victim as 12.07.1999. In the ossification test also, the age of the prosecutrix was found to be 16 years. PW2 Naveen Goswami (maternal uncle) of the prosecutrix/victim also disclosed her age as 16 years. 16. In the opinion of this Court, the prosecution has proved its case beyond reasonable doubt that the accused has committed sexual intercourse with the prosecutrix, who was 16 years of age at the time of incident and thus, the act cannot be held to be consensual. 17. Accordingly, there is no merit in this appeal and the same is dismissed. Accused is in jail. He shall serve out the sentence so imposed against him by the trial court. 18. Let a copy of this judgment and order along with the LCR be transmitted to the Court below.