HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Case :- CRIMINAL APPEAL No. – 1936 of 2016

Appellant :- Nattu @ Suresh

Respondent :- State Of U.P.

Counsel for Appellant :- Anil Kumar Tripathi

Counsel for Respondent :- Govt. Advocate

Hon’ble Anant Kumar,J.

(1) The present appeal under Section 374 Cr.P.C. has been filed against the judgement and order dated 25.11.2016 passed by Additional Sessions Judge, Court No.5, Gonda in Special Case No.01 of 2015, Case Crime No.337 of 2014 under Section 376 I.P.C. and Section 5/6 POCSO Act, Police Station Kotwali Mankapur, District Gonda, whereby the appellant has been convicted and sentenced in Section 376 I.P.C. for ten years Rigorous Imprisonment and Rs.10,000/- fine and in default of payment of fine 6 months additional Rigorous Imprisonment and in Section 5/6 of POCSO Act, 10 years Rigorous Imprisonment and Rs. 10,000/- fine and in default of payment of fine the appellant would be served 6 months additional Regorous Imprisonment. All the sentences would rune concurrently.

(2) The brief facts relevant for disposal of this appeal are that one Jokhna wife of Jhinku R/o Bharhu, Police Station – Kotwali Mankapur, District – Gonda has submitted a written complaint in the Police Station – Mankapur, District Gonda on 11.10.2014 to the effect that on 29.9.2014 the complainant had gone to take medicine for his son at Gonda. The daughter of the complainant was at the residence. The grand daughter aged about 2 years was playing at the door of one Jagdeo at about 2 PM. At that time, the accused Nattu @ Suresh took her at some distance and put his finger in the private part of the victim, due to which blood oozed out, then he left the victim and ran away. Hearing weeping sound of the victim, the daughter of the complainant Sitam rushed towards the victim and took the victim from the scene of occurrence and saw the applicant running away from there. Other villagers had also seen him. Therefore, a request was made to lodge the report. On the basis of this written complaint, on which there was thumb impression of complainant, the F.I.R. was lodged under Section 376 I.P.C. and Section 5/6 POCSO Act being Case Crime No.337 of 2014 on 11.10.2014 and an entry to this effect was made as G.D. No.11 at 8.45 on 11.10.2014. Investigation proceeded. The investigated officer visited the scene of occurrence, prepared a site plane and recorded the statement of witnesses. The victim was sent for medical examination and she was medically examined on 11.10.2014 itself. On the basis of erupted teeth, her dental age was found between 2 and 1/2 years. After investigation, the Investigating Officer filed chargesheet against accused under Section 376 I.P.C. and Section 5/6 POCSO Act. The case being triable by sessions was committed to the court of Sessions. The accused was summoned and charges under Section 376 I.P.C. and Section 5/6 POCSO Act were framed, to which he denied and prayed for trial.

(3) On behalf of prosecution total 10 witnesses have been produced, wherein PW.1-Jokhna, who is the complainant of this case, PW.2 Radha, PW.3 Sitam (mother of the victim), PW.4 Mahesh (father of the victim), PW.5- Shashikant Yadav, Investigating Officer, PW.6 Dr. Lalita, Consultant District Women Hospital, Gonda, PW.7 Dr. Anil Kumar Singh, Pathologist, District Women Hospital, Gonda, PW.8 Dr. R.C. Verma, Senior Consultant, District Women Hospital, Gonda, PW.9- Constable Sidhu Prasad, and PW.10 – Dr. Surendra Kumar Gaur.

(4) After recording the statement of witnesses of the prosecution, statement of accused was recorded under Section 313 Cr.P.C., wherein he was referred to the evidences produced against him by the prosecution to which he denied that he is innocent and has falsely been implicated in this case.

(5) After hearing the arguments of respective parties, the trial court has concluded that the accused appellant is a guilty of offence under Section 376 IPC and Section 5/6 POCSO Act and has made convict the appellant, hence this appeal.

(6) Heard learned counsel for the appellant as well as learned A.G.A. for the State and perused the record.

(7) It is mainly argued by learned counsel for the appellant that the F.I.R. in this case has been lodged with inordinate delay. The occurrence is shown to have taken place on 29.09.2014, whereas the F.I.R. was lodged on 11.10.2014 and no cogent explanation of delay has been made. It is also stated that when the victim was examined, no injury was found on her private part. The witnesses of fact have not supported the prosecution version properly and the prosecution has failed to prove the guilt of the accused beyond shadow of all reasonable doubt, so the trial court has committed manifest error in holding the appellant guilt of the offence.

(8) Per contra, learned A.G.A. has stated that from perusal of the record it is evident that the charges against the appellant were well proved and the appellant has been found guilty of such heinous offence, which was committed against a child of 2 years, so the appellant – accused is not entitled for any leniency from the court and the appeal is liable to be dismissed.

(9) From perusal of record it is evident that from the side of prosecution four witnesses of fact have been produced, wherein PW.1 Jokhna is the complainant of this case, who is not obviously eye witness of the occurrence. The F.I.R. lodged in this case itself shows that on the date of occurrence the complainant of this Jokhna was not present on spot and she was shown to have gone to Gonda for taking medicine for his son and when she came back the entire story was narrated to him by her daughter (PW.3 -Sitam) and PW.2-Radha W/o Kailash, who where rightly present on the seen of occurrence and on the basis of information gathered by the complainant from the persons of the locality, the F.I.R. was lodged. She has stated in her statement that at the time of occurrence, she had gone alongwith her son Raj Kumar to Gonda for taking medicine, so she is not eye witness and whatsoever given in her statement was a hear say, so, to my view, much reliance cannot be placed on the witness as she herself has admitted that she came back from Gonda and then the information regarding the incident was given to her by Sitam (daughter of the complainant) as well as Mahesh (son-in-law).

(10) Regarding delay caused in lodging the F.I.R., no cogent explanation has been given. Now, I come to the statement of PW. 2 Radha, to some extent she had supported the prosecution version and had stated that at the time of occurrence she had gone to the house of Jokhna, where her daughter Sitam and son-in-law were present. She has stated that at the time of occurrence the victim was playing alongwith other children and applicant had taken her in his lap and had put his finger in her private part, due to which the victim was crying, then the applicant ran away. However, the mother of the victim Sitam – PW-3 as well as Mahesh (father of the victim) – PW.4 have not supported the prosecution version and have stated that though they were present at the main door of the house, the victim was playing alongwith other children of the locality. She had heard the weeping sound of victim and then she had gone to the place where she had not seen victim in the lap of the appellant and had not seen the appellant putting his finger in the private part of the victim. So far as statement of PW.3-Sitam is concerned, she has specifically stated that at the time of occurrence the victim was playing with other children of the locality, during which she had sustained injury. She has declared hostile. Likewise PW-4 Mahesh has also stated that at the time of occurrence he had not seen the victim in the lap of the appellant and had not seen that he had put his finger in the private part of the victim, rather she was playing with the other children of the locality where she had sustained injury. This witness also declared hostile. In this case PW.6 – Dr. Lalita, the doctor of District Women Hospital, Gonda has stated that the internal examination of the victim was done on 11.10.2014 and in the same hymen of the victim was found intact and there was no tear in the same. In labia minora and forsteriana ‎some redness was found, except that, there was no injury in her private part.

(11) It is evident from the statement of the witnesses that the own mother and father of the victim (Sitam and Mahesh) have not supported the prosecution version and they have stated that at the time of occurrence the victim was not in the lap of the appellant. They had not seen the appellant putting his finger in the private part of the victim. The complainant in this case is not the eye witness. She has specifically stated that she had lodged F.I.R. on the basis of information received from Sitam and Mahesh. It is also evident that she had not gathered any information from PW.2 Radha. There is no cogent reason for lodging the F.I.R. with inordinate delay of about 12 days. Obviously, after such a long time, no abnormality would be found in the medical report. Learned trial court has not taken into account all these aspect of matter. To my view, the trial court has wrongly reached to the conclusion that the prosecution has succeeded to proved guilt of the accused beyond shadow of all reasonable doubts.

(12) In view of above. the case against the appellant is not properly proved and the impugned judgement of the trial court is liable to be set aside and the appeal is liable to be allowed.

(13) Accordingly, the appeal is allowed. Judgement and order dated 25.11.2016 passed by learned Additional Sessions Judge, Court No.5, Gonda in Special Case No.01 of 2015, arising out of Case Crime No.337 of 2014, under Section 376 IPC Section 5/6 POCSO Act, 2012, Police Station Kotwali Mankapur, District – Gonda is set aside. Since the appellant is in jail, he would be released from the jail, if he is not warranted in any other case.

Order Date :- 01 October, 2019

S. Kumar