Mir Dara Sheko, J. - (1.) The criminal appeal arises out of judgement and conviction dated 7th April, 2016 directed by learned Special Judge (POCSO) in Special Case No. 12 of 2014 (Special Trial No. 89 of 2014) for the offence punishable under section 8 of the Protection of Child from Sexual Offence, Act 2012, Section 354, 366, 323/506 of the Indian Penal Code.
(2.) Learned counsel Mr. D.Ilango representing the convict-appellant submitted that the judgement of conviction directed by learned Special Judge upon his client should be set aside and quashed since it is illegal and based on discrepant evidence, and the appeal should be allowed for the following reasons:- (i) Though FIR was registered for the offence of Section 363, 323 and 506 of the Indian Penal Code against unknown offender on the basis of reporting on the complainant Smt. Jitni Devi, happened to be the mother of Shivani, a minor girl then aged about 8 years 3 months, the appellant was never placed for test identification parade. Submitted thereby that the identification of the appellant on dock by the prosecution witnesses should not be given of much importance. Because the possibility of planting fabricated evidence against the appellant may not be ruled out. (ii) The FIR was silent about any allegation of outraging of modesty to that minor girl, and the allegation of molestation came for the first time in the alleged recorded version by the NGO namely PRAYAS (Ext.6). Thereby submitted that effort was there for embellishment after inception of the FIR. (iii) Learned Magistrate who allegedly recorded the statement of the alleged victim Shivani and her mother (complainant) under Section 164 of the Code of Criminal Procedure, was neither examined in the case, nor, the alleged statements recorded by the Magistrate were marked as exhibits. In view of such latches of the prosecution, the liberty of the appellant to cross-examine the learned Magistrate recording those statements was withheld. (iv) Though according to the prosecution case Shivani had sustained some injuries on her face and head, neither the Doctor was examined nor any medical report was exhibited. (v) PW 2 Shivani herself having not disclosed that she narrated about the alleged incident of kidnapping, outraging of modesty and assault committed by the appellant either to PW 3, PW 5, PW 6, PW 7, PW 8, PW 10 and their evidence including of PW 14 being based on hearsaid nature which were inadmissible that too of discrepant nature conviction should not be the outcome in this case. (vi) In the FIR there being no narration of incident mounting to outraging of modesty to Shivani and since thereby the case was not initiated for the offence under Section 354 of the Indian Penal Code or 7/8 POCSO Act, subsequent addition of those provisions should be deemed to have been planted against the appellant in an afterthought manner. (vii) The site plan prepared by the I.O. to indicate the topography of the place of occurrence and its in and around had no symmetry with the evidence adduced by the respective witnesses in Court, since, through evidence it had come that house of PW 2 was on the western side of the Prothrapur main road and PW 2 was allegedly taken towards Brijgunj Ata chakki with high speed and she was dropped allegedly at Bird Line Chawk, which has no symmetry with the site plan exhibit 8. (viii) During framing of charge as well as during examination under Section 313 of the Code of Criminal Procedure the appellant having pleaded complete innocence about the allegations labelled against him, the conviction upon the planted evidence should be set aside to remove the stigma with which the appellant has been living in his society and thereby the appeal should be allowed.
(3.) Mr. N.A. Khan, defending the State supported the judgement of conviction. Submitted that from amongst the evidence on record there were some discrepancies in the narration of the incident in the manner how it had happened. But when the evidence of the victim girl PW 2 and her mother could not be shakened in terms of the charges framed against the appellant, and, the appellant having failed to prove any inimical relationship between him and them, for which it could be guessed that some planted evidence could have been possible, the judgement of conviction and its sentence order as directed by learned Special Judge should not be interfered with. Mr. Khan basically depending upon the evidence of the victim girl coupled with the corroboration as is evident from her parents and other public witnesses concluded that the charge of kidnapping followed by sexual assault under criminal intimidation were well established beyond reasonable doubt and therefore, the appeal is liable to be dismissed by giving necessary direction upon the learned Special Judge for implementation of the sentence since the appellant has been enjoying so far the liberty of bail.;