Decided on April 06,2021

Atesham Khan @ Ahtesham S/O Wasim Khan Appellant
STATE OF BIHAR Respondents


BIRENDRA KUMAR, J. - (1.) The sole appellant, above named, faced trial before learned Additional Sessions Judge-I-cum-Special Judge under POCSO Act at Katihar in connection with Katihar Town P.S.Case No.560 of 2017 corresponding to G.R.No.3536 of 2017 and C.I.S.No. 843 of 2017. The learned Trial Judge found the appellant guilty for offence under Section 376 I.P.C. as well as under Section 4 of the POCSO Act by the impugned judgment dated 27.05.2019. Ten years rigorous imprisonment besides fine of Rs.50,000/- was awarded vide impugned order dated 30.05.2019. In default of payment of fine, one month imprisonment was ordered for offence under Section 376 I.P.C. However, no separate sentence was passed for offence under Section 4 of the POCSO Act. On deposit of the fine Rs. 40,000/- was ordered to be given to the victim.
(2.) The prosecution case, as disclosed in the written report of Mr. Kishore Sah (P.W.6), the father of the victim girl, is that on 04.08.2017 (Friday) at about 11.30 A.M., he had telephonically called the appellant, a T.V. Mechanic, to his house in Mohalla-Vivekanand Colony, P.S.-Town, Town and District- Katihar for mending the Television. The informant left for the market as he was in business of vegetables. Only the victim girl, aged about 14 years, was there in the house. The victim was a student of Shyama Sanskrit Middle School in Class-VI. The appellant, taking advantage of the loneliness of the victim in the house, ravished her. The victim disclosed about the occurrence to the informant and on 08.08.2017 at 9.00 A.M., the appellant again came to the house of the informant where the people caught and assaulted to the appellant and handed over to the police. The FIR of the occurrence was lodged on 08.08.2017. After investigation, the police submitted chargesheet and the appellant was put on trial. The prosecution examined altogether eight witnesses to prove the charges against the appellant and the defence produced three witnesses, mainly to substantiate that this is a case of false implication as appellant had money due with the informant, some for mending the Television and the rest which was advanced as loan to the informant.
(3.) Mr. Vikramdeo Singh, learned counsel for the appellant contends that prosecutrix is not corroborated by medical evidence vide medical report at Ext.1 and evidence of Dr.Kanak Ranjan P.W.5 and rest of the witnesses namely, P.W.1, Pramila Devi, the mother of the victim, P.W.2 Murari Chaudhary, P.W.3 Kishore Kumar, P.W.4 Kishan Pal, P.W.6 Kihore Shah, the father of the victim, are hearsay witnesses. P.W.7 is the prosecutrix herself and P.W.8 Nityanand Pandey is Investigating Officer of the case, who has simply supported the investigation done by him. Learned counsel for the appellant next contends that there is delay of four days in reporting the matter to the police, hence chances of deliberations and concoctions cannot be ruled out. Moreover, appellant is in jail since 08.08.2017.;

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