ABHIMANYU JENA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The appellant Abhimanyu Jena faced trial in the Court of the learned Addl. Sessions Judge -cum- Special Judge, Angul in Special (POCSO) Case No. 104 of 2016 for the offences punishable under Sec. 363, 354(A)(i)/511 of the Indian Penal Code (hereafter 'I.P.C.') and sec. 8 of the Protection of Children from Sexual Offences Act, 2012 (hereafter for short 'POCSO Act') on the accusation that on 6/10/2016 at about 5.30 a.m. at village Kusapangi (Mundamala Sahi), he kidnapped the victim (P.W.1), who is a girl aged about twelve years, from the lawful custody of her mother guardian (P.W.2) without her consent and committed sexual assault on her by forcibly dragging her by holding her hands towards the bush and also committed sexual assault on the victim. The learned trial Court vide impugned judgment and order dtd. 13/8/2018 has been pleased to hold that the prosecution has successfully established the charges and the sentenced the appellant to undergo R.I. for three and half years and to pay a fine of Rs.2,000.00 (rupees two thousand), in default, to undergo further R.I. for one month for the offence under sec. 363/511 of the I.P.C., to undergo R.I. for three years and to pay a fine of Rs.2,000.00 (rupees two thousand), in default, to undergo further R.I. for one month for the offence under sec. 8 of the POCSO Act and no separate sentence was awarded for the offence under sec. 354(A)(i) of the I.P.C. in view of sec. 42 of the POCSO Act and the sentences were directed to run concurrently.

(2.) The prosecution case as per the first information report (Ext.1) lodged by Pinky Naik (P.W.2) before the Inspector in-charge of Banarpal police station on 6/1/2016, in short, is that on that day in the early morning at about 5 O' clock, she and her daughter (P.W.1), who was aged about twelve years, had been to attend call of nature to the nearby railway line and P.W.1 was attending the call of nature at a distance from P.W.2 and at that point of time, P.W.2 heard the cries of P.W.1 and rushed to that place and found that one unknown person was carrying P.W.1 inside the bush and when that man noticed P.W.2, he left the victim and jumped into the canal and when P.W.2 shouted, the persons, who were present in the nearby locality chased that unknown person and apprehended him, who disclosed his name to be Abhimanyu Jena (appellant). On the basis of such F.I.R., the Inspector in-charge registered Banarpal P.S. Case No.157 dtd. 6/10/2016 under sec. 363 of the I.P.C. and sec. 18 of the POCSO Act and directed P.W.8 Prasanta Kumar Padhiary, S.I. of Police attached to Banarpal police station to take up investigation. P.W.8 made a requisition to the Superintendent of Police, Angul to depute a lady police officer for recording the statement of the victim as no lady police officers are posted in Banarpal police station. During the course of investigation, P.W.8 examined the witnesses, prepared the spot map, arrested the appellant on 6/10/2016 and since the appellant had sustained some injuries, he was sent to C.H.C., Banarpal for medical examination and thereafter, the appellant was forwarded to the Court on 7/10/2016. The victim denied for her medical examination. The I.O. (P.W.8) seized the school admission register where the victim was prosecuting her studies to ascertain about the date of birth of the victim and after seizure of such register, it was handed over in the zima of the Headmaster after execution of zimanama (Ext.5) and thereafter, on completion of investigation, submitted charge sheet against the appellant on 30/11/2016 under Sec. 363, 376(2)(n) read with sec. 109 of the I.P.C. and Sec. 4 and 6 of the POCSO Act.

(3.) After submission of charge sheet, the learned trial Court framed charges against the appellant on 13/10/2017 for the offences under Sec. 363, 354(A)(i)/511 of the I.P.C. and sec. 8 of the POCSO Act.