Jharkhand High Court
Motu Mallick Son Of Kisto Mallick vs The State Of Jharkhand on 25 September, 2024
CRIMINAL APPEAL (DB) NO. 1248 OF 2018
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AGAINST THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 27TH
FEBRUARY, 2018 PASSED BY THE
ADDITIONAL SESSIONS JUDGE I-CUM-
SPECIAL JUDGE (POCSO), DHANBAD IN
SPECIAL (POCSO) CASE NO. 03 OF 2015.
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Motu Mallick son of Kisto Mallick, resident of Sindri Basti, PO and PS
Sindri, District Dhanbad.
... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellant : Ms. Nidhi Rani, Advocate
Mr. Amit Kumar Tiwari, Advocate
For the Respondent : Mr. Tarun Kumar, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court Heard learned counsel for the appellant and learned counsel for
the State.
2. The appellant has preferred this appeal against the judgment of
conviction and order of sentence dated 27th February, 2018 passed by the
Additional Sessions Judge I-cum-Special Judge (POCSO), Dhanbad in
Special (POCSO) Case No.03 of 2015 arising out of Sindri Police Station
Case No.81 of 2014 (G.R. No. 4909 of 2014), whereby and whereunder, the
appellant has been convicted for offences under Sections 4 of the Protection
of Children from Sexual Offences Act and sentenced him to undergo
rigorous imprisonment for ten years and to pay fine of Rs.25,000/- (Rupees
Twenty Five Thousand) and in default of payment of fine to further undergo
rigorous imprisonment for a period of four months.
3. Learned counsel appearing for the appellant submits that the
appellant has been falsely implicated in this case and there is no credible
Cr. Appeal (DB) 1248 of 2018
evidence to suggest that the appellant has committed rape upon the victim.
From the evidence led by the prosecution, there is an element of doubt
about the occurrence and commission of the offence by this appellant. Once
a doubt is created in the mind of this Court, the benefit of the same should
be given to the accused. The area from where the victim was taken by this
appellant, as alleged, was a crowded area, but surprisingly no one had seen
this appellant taking the victim. The victim had also improved the story while
deposing as a witness. The doctor opined that the injuries on the body of the
victim can be caused by fall, which would suggest that no sexual assault
was committed upon her. The victim was aged about 3 years and solely on
the basis of the statement of the victim, the appellant could not have been
convicted for the offence under Section 4 of the Protection of Children from
Sexual Offences Act. Learned counsel for the appellant further argues that
there are no corroborative evidence in support of the victim's statement. On
these grounds, learned counsel submits that the appellant is liable to be
acquitted and prays for the same.
4. Learned counsel appearing for the State submits that the victim
in her statement has fully supported the prosecution case, which has been
corroborated by the medical evidence. The victim here is of three years,
thus, considering the nature of the offence, appellant has rightly been
convicted.
5. The prosecution case is based on the written report of the
informant, wherein she stated that she along with her family went to the
temple near the poultry farm for worshiping. There was a huge crowd. The
victim being her grand daughter, got separated from the family. At night
about 10 p.m. this appellant brought the victim near the temple and fled
away. The girl was weeping. She wanted to ease herself, but she could not
because of pain. The victim girl told that this appellant had committed wrong
through her anus. Injury was also seen. As it was night, police could not be
informed, but on the next day, i.e., 27.10.2014, information was given to the
police.
6. On the basis of the aforesaid written report, Sindri Police Station
Case No.81 of 2014 was registered for offences under Section 377 of the
Indian Penal Code and Section 4 of the Protection of Children from Sexual
Offences Act.
Cr. Appeal (DB) 1248 of 2018
Police, after completion of investigation, submitted charge sheet
against the appellant for offences under Section 377 of the Indian Penal
Code and Section 4 of the Protection of Children from Sexual Offences Act.
Cognizance of the offence was taken and the case was committed for trial.
Charge was framed under Section 4 of the Protection of Children from
Sexual Offences Act, which was read over and explained to the appellant.
Since the appellant pleaded not guilty, he was put on trial.
7. To bring home the charge against the appellant, the prosecution
had examined 8 (eight) witnesses, namely P.W.1 Jamuna Devi, P.W.2 the
victim herself, P.W.3 Rajesh Sao, P.W.4 Kalpana Devi (informant), P.W.5
Sivani Ghosh, P.W.6 Kali Pado Mallik, P.W.7 Ganesh Prasad (investigating
officer) and P.W.8 Dr. Rita Gupta.
The prosecution also produced following documents to
substantiate its case, which were marked exhibits:-
Ext.1 Formal F.I.R.
Ext. 2 Registration endorsement on the written report
Ext. 3 Medical Report
8. After closure of prosecution evidence, the statement of the
appellant was recorded under Section 313 Cr.P.C wherein he claimed to be
innocent.
9. The Trial Court, after hearing the arguments and appreciating
the evidences on record, by the judgment of conviction and order of
sentence dated 27th February, 2018 passed in Special (POCSO) Case No. 3
of 2015, has convicted and sentenced the appellant for offence under
Section 4 of the Protection of Children from Sexual Offences Act.
10. After hearing the parties, we have gone through the entire
records of the case including the evidence.
11. The main witness in this case is P.W.2, who is the victim
herself. The Court tested her ability to depose and finding her capable to
depose, had recorded her statement. This victim had stated that she was
sexually assaulted by the appellant and also hinted towards private part
where she got pain. She also identified the appellant. There is nothing in her
cross examination to disbelieve her.
12. P.W.8 is the doctor, who examined the victim girl and Exhibit 3
is the medical report. The doctor found the following injury:-
Sign of Injury - Laceration around anal opening and
Cr. Appeal (DB) 1248 of 2018
stretching. (ii) Laceration of perineal region (iii) Linear
Tear- outside vagina opening, trickling of blood from that
site.
Internal Examination- Vulva no injury, Vagina tear outside
introitus, Fourchettee- torn, Hymen- intact, Haemorrhage-
present due to vaginal tear, no discharge.
He proved the medical report to be in his own pen and
signature, which was marked as Exhibit 3. Her age was assessed as 4
years.
13. From the aforesaid evidence of the doctor and medical report,
we find that the doctor found laceration around anal opening and stretching,
laceration of perineal region; linear tear outside vagina opening, trickling of
blood from that site. He also found vagina tear outside introitus, fourchettee
torn, hymen intact, haemorrhage present due to vaginal tear.
14. This report of the doctor along with his testimony unequivocally
suggests sexual assault upon the victim. The evidence of the victim girl
matches with the medical report, so far as factum of sexual assault is
concerned. Though the doctor, in her cross examination, gave suggestion
that the injuries can be possible due to fall, but we are not accepting the
aforesaid suggestion. The prosecution has established the factum of sexual
assault on the victim. The victim also stated that this appellant sexually
assaulted her and identified this appellant also in Court.
15. Further, P.W.1 has stated that after the victim got lost, this
appellant had kept the victim near the temple and fled.
16. P.W.3 also stated that the girl went missing and thereafter when
she was recovered, she was in bad shape. This appellant had done wrong
with her. Similar is the statement of P.W.4.
17. The aforesaid evidence coupled with the medical evidence,
clearly suggests that it is this appellant, who had committed the offence of
sexual assault upon the victim girl. The Trial Court had correctly appreciated
the evidence and convicted and sentenced the appellant for the offence
under Section 4 of the Protection of Children from Sexual Offences Act.
18. We find no merit in this appeal. The judgment of conviction and
order of sentence dated 27th February, 2018 passed by the Additional
Sessions Judge I-cum-Special Judge (POCSO), Dhanbad in Special
(POCSO) Case No.03 of 2015 needs no interference. This appeal is,
Cr. Appeal (DB) 1248 of 2018
accordingly, dismissed.
19. Pending interlocutory applications, if any, stand disposed of.
20. Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 25th September, 2024
NAFR/Kumar/Cp-03
Cr. Appeal (DB) 1248 of 2018
