1. The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 30.11.2021 passed in POCSO Case No. 25/2019 by which the learned Additional Sessions Judge (F.T.C.), Kondagaon, District Kondagaon has convicted the appellant under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act, 2012) and sentenced him to undergo life imprisonment with fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year.

2. Case of the prosecution, in short, is that on 26.06.2019, the appellant lured the prosecutrix who is a minor girl aged about 5 years and took her to his house and committed rape upon her.

3. The first information report (for short, the FIR), (Exhibit P/5) was lodged by the father of the prosecutrix namely Mansai Markam (PW-3) at Police Station, Vishrampuri, District Kondagaon, on 26.06.2019 at 11:00 hours. The said FIR was registered by Sunita Uikey (PW-9) Assistant Sub Inspector, under Section 376 of the Indian Penal Code (for short, the IPC) and Section 4 of the POCSO Act.

4. In the FIR, it was alleged by the complainant-Mansai Markam (PW-3) that he is a resident of Aamgaon, Police Station Bishrampuri. On 20.05.2019, there was a marriage function in their village where he had gone. Her wife Neeta Markam, mother-Dashoda Bai and his both children were at home. Her elder daughter (prosecutrix) aged about 5 years, was playing outside the house. At 11 a.m., when her wife did not find the prosecutrix at home, she went to the house of the appellant. She asked the appellant as to what he was doing with her daughter, the appellant wore his clothes and ran away. Thereafter, her daughter came out of the house after wearing her undergarments. She brought the prosecutrix to her house. The prosecutrix was suffering from fever for a week and complained of pain in her private part. The said incident was informed by Neeta Markam (PW-1) to him and thereafter, the complainant informed about the same to his brother Mansha Ram and sister-in-law (Bhabhi) Fulma Markam (PW- 5) and thereafter, the report was lodged on 26.06.2019. It was specifically alleged that the appellant had committed rape upon the prosecutrix.

5. After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellant/convict under section 376, 376(3) IPC and Section 4, 5(m) / 6 of the POCSO Act, 2012 before the learned Special Judge (FTC) Kondagaon, District Kondagaon, and the case was registered as POCSO Case No. 25/2019.

6. The learned Additional Sessions Judge framed charge on 06.09.2019 charging the appellant/accused for the offence punishable under Section 376AB of the IPC and Section 6 of the POCSO Act, 2012.

7. Amongst others, the prosecution has filed the following documents in support of its case:

"• Consent letter (Exhibit P/1)

• Crime details form(Exhibit P/2)

• Property seizure memo(Exhibit P/3)

• Written complaint (Exhibit P/4)

• First Information Report (Exhibit P/5)

• Consent letter (Exhibit P/6)

• Birth Certificate (Exhibit P/7)

• Property seizure memo (Exhibit P/8)

• MLC report of sexual violence (Exhibit P/9)

• Query report of seized undergarment(Exhibit P/10)

• MLC report of prosecutrix (Exhibit P/11)

• Application for MLC of appellant alongwith report (Exhibit P/12)

• Query report of seized undergarment of appellant (Exhibit P/13)

• Property seizure memo (Exhibit P/14)

• Arrest memo (Exhibit P/15)

• Arrest information (Exhibit P/16)

• Memo regarding preparation of spot map (Exhibit P/17)

• Memo to Chief Judicial Magistrate regarding recording of statement of prosecutrix under Section 164 Cr.P.C. (Exhibit P/18)

• Property seizure memo (Exhibit P/19)

• Memo for query of seized undergarment of prosecutrix (Exhibit P/20)

• Memo for query of seized undergarment of appellant (Exhibit P/21)

• Memo to Chief Medical Officer appointing a female Doctor and medical examination of prosecutrix by female Doctor (Exhibit P/22)"

8. In order to bring home the offence, prosecution examined as many as 9 witnesses namely:

• Smt. Neeta Markam (PW-1): She is the mother of the prosecutrix. She stated that on 20.05.2019, she was at home and at about 11-12 in the afternoon, the prosecutrix was playing outside her house. She called her daughter but when she did not answered, she went out in search of her. While searching, when she asked Sonai Bai, wife of the appellant as to whether she had seen her daughter, Sonai Bai informed that her husband i.e. the appellant had taken herdaughter with him stating that he would give biscuit to the prosecutrix. When she went inside the house, she saw the appellant had made the prosecutrix lie on the floor. At that time, the prosecutrix was wearing her frock but not her undergarment and the appellant was completely naked. When she asked as to what he was doing with her daughter, he stated nothing and bowed his head in shame. She came home and narrated the incident to her mother-in-law. In the evening, when his brother-in-law (Jeth) sister-in-law (Jethani) returned home, she narrated the incident to them also. She took her daughter (prosecutrix) to her home and when she asked the prosecutrix, the prosecutrix told her that Chuchru’s (son of the appellant) father, had called her inside his house stating that he would give her biscuit and thereafter took off her undergarment and was doing some weird actions. On the next day, when she was bathing the prosecutrix, she saw that there was swelling in her private part. The prosecutrix was suffering from fever and used to weep because of pain. The prosecutrix was taken to the Kanker Hospital where she informed the incident to one Nurse. After treatment from the hospital, she returned back and lodged the report in at Vishrampuri. In the cross-examination, this witness states that she has not seen the appellant doing any wrong thing with the prosecutrix, however, she states that when she called the name of her daughter, the appellant who was lying on the floor stood up and the prosecutrix was lying on the floor. used to weep

• Prosecutrix (PW-2): She has clearly deposed that how the appellant lured her and called her inside his house stating that he would give her biscuit. She is acquainted with appellant. She further states that the appellant took off her undergarments and thereafter the appellant also removed his clothes and thereafter the appellant kissed her private part and thereafter he inserted his genitals inside the private part of the prosecutrix. She was in pain and at that time, her mother came. She also states that thereafter the appellant ran away from the spot and then she informed the incident to her mother. The prosecutrix was cross examined and a suggestion was given to her that the appellant had done nothing with her upon which she states that the appellant did. She was further asked that after giving biscuit, she was sent back to which she has replied that she was not sent back but the appellant inserted his private part into her private part.

• Mansai Markam (PW-3): He is the father of the victim. He states that when he came back home on 20.05.2019, at about 12- 12:30 in the afternoon, he saw her mother scolding the appellant upon which he asked her mother as to why she was scolding him, upon which her wife informed about the incident. 20 – 22 days after the incident, the prosecutrix was having fever. He was informed by her wife that the appellant had took off his clothes and also the clothes of their daughter and that when the appellant saw her, he ran away. Her wife (PW-1) had informed him that her daughter pointing towards her private part stated that she was feeling pain. On the next day i.e. on 26.06.2019, they came to Vishrampuri Police Station and reported the matter to the police. In the cross examination, he states that he has not seen the incident himself and that the report was lodged one month after the incident.

• Smt. Dashoda Bai (PW-4): She is the grandmother of the prosecutrix. She states that the prosecutrix was playing in the shade under the Tamarind tree. Her daughter-in-law (PW-1) called the prosecutrix and when she could not find her, she asked the wife of the appellant about the prosecutrix who informed her that she is inside her house. She states that PW-1) had informed her about the entire incident. 4-5 days after the incident, the prosecutrix was having fever and was not eating properly and complained of having pain in her private part. In the cross-examination, she states that it was correct to state that she herself had not seen the incident.

• Smt. Fulma Markam (PW-5): She states that Neeta Markam (PW-1) had informed her about the entire incident on 0.05.2019 at about 5 p.m. when she returned back from her school duty. In cross-examination, she states that she had not seen the incident but was informed by PW-1.

• Dr. Reeta Gedam (PW-6): She is the Doctor who had examined the prosecutrix. She states that on 27.0.2019 at about 12:30 in the afternoon, one Lady Constable Sunila Netam brought the prosecutrix for examination. The prosecutrix was in a state of shock and was barely able to speak. There was no injury mark on the body of the prosecutrix but her hymen was old torn at 2 O’Clock and on being touched around that area, the prosecutrix was feeling pain. She had prepared two slides from her Perinial area and it was sealed and handed over to the said Constable. She has opined that there was no sign of recent intercourse but it could not be ruled out that she was subjected to sexual intercourse earlier. She had referred the prosecutrix for her mental examination by a Psychiatrist. She had prepared the report (Exhibit P/9). On the said date, the same Constable had brought a sealed packet containing seized underwear to examine as to whether it contained human semen. She could not find any stains in the said underwear and advised for chemical analysis.

• Dr. Pradeep Cladius (PW-7): He is the Doctor who had issued the birth certificate (Exhibit P/7) of the prosecutrix.

• Dr. Mariyum K.A. (PW-8): She is the Psychiatrist who had done the counselling of the prosecutrix. He opined that the prosecutrix was mentally fit. He prepared his report (Exhibit P/11). During counselling, one male Doctor, namely Dr. Anil, Dr. Indens, one social worker Saroj and Psychiatrist Dr. Iris were there.

• Dr. S.N.Dhruv (PW-9): He is the Doctor who was posted at Community Health Centre, Vishrampuri. He had examined the appellant who was brought by Budhram Mandavi, Constable on 28.06.2019. On examination, he found that there were no sign of injuries on his body or his private part. He found that his sexual organs were well developed and there was no deformity. According to him, the appellant was capable of performing sexual intercourse. On the same day, the said constable had brought one blue underwear on a query being made as to whether it had human semen or not. On examination, he found that there was a white stain on it but for confirming it, he had advised for chemical analysis. He had prepared the query report Exhibit P/13. In cross-examination, he clearly denied that the appellant was a mentally ill person.

• Smt. Sunita Uikey (PW-10): She is the Investigating Officer who has investigated the matter. She had registered the FIR (Exhibit P/5) bearing Crime No. 37/2019 under Sectin 376 IPC and Section 4, 5(3), 6 of the POCSO Act, 2012. On the said date, she had recorded the statement of the mother (PW-1), father (PW-3), and grandmother (PW-4) of the prosecutrix. She had prepared the spot map on 27.06.2019 as stated by the prosecutrix. She had also seized one underwear of the prosecutrix and prepared seizure memo (Exhibit P/3), the birth certificate (Exhibit P/8) and had also obtained consent of the parents of the prosecutrix for her medical examination. The IO also seized one old underwear (Exhibit P/14) and arrested the appellant in presence of the witnesses and had prepared arrest memo (Exhibit P/15). She had sent the appellant for MLC to C.H.C. Vishrampuri to ascertain as to whether the appellant was capable of performing sexual intercourse. She had also made a requisition (Exhibit P/17) to the Tahsildar, Baderajpur on 28.06.2019 for getting the spot map prepared. The IO had further made an application to the Chief Judicial Magistrate Kondagaon for recording the statement of the prosecutrix which is Exhibit P/18. She had seized one sealed packet (slides) which was produced by the Lady Constable Sunila Netam. On 01.07.2019, she had sent the used underwear of the prosecutrix for examination to the Chief Medical Officer, District Hospital, Kondagaon and on 28.06.2019, the underwear of the appellant for examination to Block Medical Officer. She had also requisitioned for the report of the Psychiatrist from the Late Baliram Kashyap Memorial Hospital, Dimrapal, Jagdalpur, through the Station House Officer. The seized exhibits were sent to the FSL through Superintendent of Police, Kondagaon.

9. The statement of the accused under section 313 CrPC was recorded on 14.07.2021. He stated that he was innocent and has been falsely implicated in this case. On being asked, he stated that he does not want to lead any evidence in his defence.

10. The learned Additional Sessions Judge (F.T.C.) Kondagaon, District Kondagaon, after considering the evidence on record, convicted the appellant/accused under Section 376AB of the IPC but under the provisions of Section 42 of the POCSO Act, 2012, has convicted him for the offence under Section 6 of the POCSO Act, 2012 as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

11. The present appeal was filed on 05.01.2022 and it came for hearing for the first time on 07.01.2022 and the matter was admitted. The matter was listed for various occasions and on 23.08.2022, his application for suspension of sentence and grant of bail was rejected by this Court. Thereafter, the matter was listed for hearing finally on 09.05.2023 on which date, none appeared on behalf of the appellant. Thereafter, on 17.07.2023 also, none appeared on behalf of the appellant and as such, the matter was directed to be listed on the next date i.e. on 18.07.2023 and on the said date, the this Court asked the appellant who is lodged at Central Jail, Jagalpur (through video conferencing) as to whether he wishes to take services of learned Amicus Curiae. On his consent being given, Mr. Hari Agrawal, learned counsel was appointed as Amicus Curiae in this case and the Registry was directed to hand over one set of paper book to him. The matter heard finally on 16.08.2023.

12. Mr. Hari Agrawal, learned Amicus Curiae submits that the allegations levelled against the appellant are false and baseless. There is no eye witness to the incident and the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. There are contradictions and omissions in the statement of witnesses. Even the medical report does not support the case of the prosecution. There has been some political animosity between the appellant and the family of the prosecutrix, therefore, he has been falsely implicated in this case.

13. On the other hand, Ms. Madhunisha Singh, learned Deputy Advocate General appearing for the State/respondent submits that the appellant has committed a heinous crime of rape against a minor girl aged about 5 years by luring her to give biscuit. The mother of the prosecutrix has seen the appellant in a fully naked condition who had made the prosecutrix lie on the floor with no undergarments. The medical evidence clearly supports the case of the prosecution. The judgment of conviction and sentence awarded by the learned trial Court needs no interference.

14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

15. The father of the prosecutrix is the informant in this case who has lodged the FIR.

16. Smt. Neeta Markam (PW-1), though has not seen the incident but she is the person who had gone searching her daughter (prosecutrix) when she could not find her at home. When she reached his neighbour’s house where the wife of the appellant was sitting outside. PW-1 asked her as to whether she had seen her daughter, she stated that she is inside her house who was called by her husband stating that he would give biscuit to the prosecutrix. When PW-1 went inside calling the name of her daughter, the first thing she saw was that the appellant was standing in a completely naked condition and her daughter was lying on the floor. Immediately she asked as to what he was doing with her daughter, he bowed his head down and stated nothing and thereafter, he ran away from the spot. The said incident was narrated by her immediately to her mother-in-law (PW-4) who started scolding the appellant. At that time, when the father of the prosecutrix (PW-3) came and asked as to why she was scolding the appellant, the incident was narrated by her wife (PW-1) to him. PW-1 also informed regarding the incident to her sister-in-law (Jethani) Fulma Markam (PW/5). The statements recorded under Section 161 Cr.P.C. of PW-1, PW-2, PW-3, PW-4 is similar to that as has been deposed by them before the trial Court and there appears to be no contradiction.

17. The prosecutrix (PW-2), is a minor girl aged about 5 years. In order to ascertain her mental level, some simple questions were asked by the learned trial Judge to which the prosecutrix has answered satisfactorily. After being satisfied, in reply to the questions put to her, the prosecutrix has clearly deposed that the appellant lured the prosecutrix that he would give her the biscuit and took her into his house and thereafter, took off her undergarment and kissed her private part and thereafter inserted his private part into the private part of the prosecutrix. The prosecutrix being an innocent child of 5 years, cannot even be tutored and her statement cannot be disbelieved.

18. Dr. Reeta Gedam (PW-6) in her deposition has clearly states that though there was no sign of recent intercourse but it cannot be ruled out that she has been subject to sexual assault earlier. The incident is said to have taken place on 20.5.2019 and the prosecutrix was examined on 27.06.2019 i.e. about more than 1 month from the date of incident. Hence, her statement in no manner can be said to be doubtful. Further, Dr. Pradeep Cladius has proved that he had issued the birth certificate of the prosecutrix while he was posted at District Hospital, Kanker. Dr. Mariyam K.A. (PW-8) is the Psychiatrist who alongwith other Doctors namely Dr. Anil, Dr. Indens, one social worker Saroj, and another Psychiatrist namely Dr. Iris had examined the prosecutrix. Dr. Mariyam clearly deposed that it was incorrect to state that the prosecutrix appeared to be aged about 11-12 years.

19. Dr. S.N.Dhruv (PW-9) had examined the appellant who found him to be capable of performing sex. He also submitted that on examination of the underwear, he found white spot on it. He further advised for chemical analysis of the said underwear.

20. The I.O. (PW-10), in her statement before the Court has narrated the entire sequence of events which has remained unrebutted by the defence.

21. In this case, the statement of mother of the prosecutrix (PW-1) is the most important one as she deposed that when she was in search of her daughter, she asked the wife of the appellant, Sonabai who was sitting outside her house, she stated that her daughter is inside her house who was called by the appellant on the pretext of giving her biscuit. When PW-1 entered their house, she saw the appellant in a naked condition and her daughter lying on the floor. There was no other person in that room meaning thereby that the appellant had lured the prosecutrix who was a child aged about 5 years to take her in the empty room of his house. The innocent child followed the appellant and went inside her house where she was subjected to rape which is evident from the evidence of Dr. Reeta Gedam (PW-6), who has clearly deposed that though there was no sign of recent sexual assault but her hymen was old torn and as such, she opined that the possibility of the prosecutrix being subjected to sexual assault cannot be ruled out as the incident was taken place on 20.05.2019 and the Doctor had examined the prosecutrix after more than one month.

22. Section 6 of the POCSO Act, 2012 reads as under:

“6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

23. Section 376AB of the IPC reads as under:

“376AB. Punishment for rape on woman under twelve years of age.-- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.”

24. In the case in hand, the victim is aged about 5 years which has been proved by the birth certificate (Exhibit P/7) where her date of birth has been mentioned as 27.02.2014 and the date of incident is 20.05.2019 and as such, she was aged 5 years 2 months and 23 days. The said fact has remain unshaken and unrebutted by the defence. Dr. Reeta Gedam (PW-6) in her statement has clearly deposed that though there was no sign of recent sexual assault, but the hymen of the prosecutrix was found torn at 2 O’clock, further, when the perinial area of the prosecutrix was being touched, the prosecutrix could feel the pain even after one month of the incident, which is indicative of the fact that she was subjected to sexual assault.

25. The appellant has also not stated anything concrete in his defence except that he does not know and that he has been falsely implicated. In our opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused the death of the deceased and he alone committed the murder of the deceased. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the trial Court.

26. Section 42 of the POCSO Act, 2012 reads as under:

"42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

42A. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."

27. The learned trial Court has rightly sentenced the appellant under Section 6 of the POCSO Act, 2012 in light of Section 42 of the POCSO Act as the sentence provided under Section 6 of the POCSO Act is of a greater degree. No leniency can be shown towards the appellant as he has sexually assaulted the prosecutrix aged about 5 years.

28. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict.

29. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

30. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 30.11.2021.

31. Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

32. Before parting with this case, we would like to record our deep appreciation for extremely valuable assistance rendered by the learned Amicus Curiae Mr. Hari Agrawal. In our considered view, learned Amicus Curiae has discharged his obligation towards the profession.