TaxTMI 
TaxTMI 
2017 (3) TMI 1969
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....015 at about 6.30 P.M., the mother of the victim asked her to fetch water from the tube well of a nearby school. When she had gone to fetch water, the appellant caught the victim from the rear and dragged her behind the school building and touched her private parts. When the victim raised objection and started screaming, the appellant threatened her for dire consequences and fled away. 3. On the written complaint of the mother of the victim, Taherpur P.S. Case No. 159/15 dated 17.09.2015 under section 8 of the Protection of Children from Sexual Offences Act was registered for investigation. In conclusion of investigation charge-sheet was filed under the aforesaid provision of law. Charge was framed against the appellant and the same was read over and explained to him. He pleaded not guilty and claimed to be tried. 4. In the course of trial, the prosecution examined as many as 17 witnesses to prove its case. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court convicted and sentenced the appellant, as aforesaid. 5. Ms. Banerjee, learned counsel for the appellant submits that prosecution case has not been proved bey....
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....e friends. The good relationship turned bitter after the incident. Prior to the incident they were on visited terms. She denied that she was tutored by her parents. 9. P.W.2, is the mother of the victim. She deposed that the incident took place around 5/6 months ago at about 6/6.30 P.M. She heard the incident from her daughter. At the time her daughter and her son had gone to fetch water and were engaging in pouring water from the tap when the appellant wanted water from her daughter. When her daughter provided water, appellant drank the water and then started tickling her daughter's leg. Thereafter he put off her frock from the rear. At that time her son was present. He gagged her daughter's face and took her behind the school. When she tried to shout, appellant threatened her daughter that she would be killed and thereafter touched her vagina. She went to the police station and as per her dictation one Dilip Sarkar scribed the written complaint. She put her signature thereon (Ext. 2). 10. P.W.3, the father of the victim corroborated the evidence of P.W. 1 and 2. 11. P.W. 4, is the brother of the victim. About four months ago the incident took place. At that time ....
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....ained his potency report (Ext. 7). He obtained original birth certificate of the victim and it handed over to P.W.2 on execution of zimmanama (Ext. 8). On completion of investigation, he filed charge-sheet. 22. From the aforesaid evidence on record, it is clear that the victim had been accosted by the appellant when she had gone to the tube well to collect water. Tube well was situated near her school which is not far away from her residence. She was accompanied by P.W.4. It has been argued that no reason is forthcoming as to why the victim had gone to the tube well near her school to collect water when there is a tube well in her house. 23. Admittedly, there is a tube well near the school premise and the school premise which is situated at a short distance from the house of the victim and the appellant. The evidence of the victim, P.W.1, that she had gone to the tube well to collect water is not only corroborated by her family members but also by the independent witnesses namely P.W.s 5 & 9 to 13 herein. In view of the consistent ocular version of the prosecution witnesses that the victim had gone to the nearby tube well to collect water, I am unable to accept the contention....
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....s to which part of the anatomy of the victim was touched would not bring the act of the appellant which was prompted by lascivious instincts beyond the culpable bounds of the aforesaid penal provision. Nor would such variation improbabilise the very genesis of the prosecution case of physical touching of the victim by the appellant with sensual intent which is consistently supported by all the witnesses. 28. Hence, I am of the opinion that the aforesaid evidence on record clearly proves the ingredients of the alleged offence and the conviction of the appellant is accordingly upheld. 29. Coming to the issue of sentence, I find that the appellant aged about nineteen years and does not have any criminal antecedent. 30. In the aforesaid factual matrix, I modify the sentence imposed on the appellant and direct that the appellant shall suffer rigorous imprisonment for three years and shall pay a fine of Rs. 10,000/- in default shall suffer rigorous imprisonment for three months more. 31. Period of detention suffered by the appellant and during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Crimin....
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.... (iv) loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; (v) the relationship of the child to the offender, if any; (vi) whether the abuse was a single isolated incidence or whether the abuse took place over a period of time; (vii) whether the child became pregnant as a result of the offence; (viii) whether the child contracted a sexually transmitted disease (STD) as a result of the offence; (ix) whether the child contracted human immunodeficiency virus (HIV) as a result of the offence; (x) any disability suffered by the child as a result of the offence; (xi) financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation; (xii) any other factor that the Special Court may consider to be relevant. (4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensat....
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....g with such offences may make orders of interim or final compensation to victim from the Fund made available by the State. It is further clarified that a conjoint reading of the Section 33(8) of the Act along with Rule 7 of the Rules made it amply clear that the power of the Special Court to award interim/final compensation is not restricted to the terms of the Victim Compensation Fund promulgated by the State but empowers the Court to award such reasonable and just amount as may be determined by it in the facts of the case in the light of the parameters laid down in Rule 7(3) of the aforesaid Rules to provide succour to a child victim. Upon orders being passed by the Special Court relating to such compensation the State Government shall pay the compensation so ordered by the Special Court within 30 days of the receipt of the order by itself or through the State Legal Services Authority or the District Legal Services Authority in whose hands the Victim Compensation Fund may be entrusted. It is also made clear that it shall be open to the Special Court in appropriate cases to grant compensation over and above the limit proposed under the scheme inasmuch as the scheme merely lays dow....
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....nt through video conferencing or by utilizing single visibility mirror or curtain to achieve such purpose. Section 37 of the Act mandates that trial in cases under the Act shall be held in camera in the presence of the parents of the child or any other person in whom the child has trust or confidence. Evidence of the child may also be recorded by way of commission under section 284 of the Code of Criminal Procedure, if necessary. The aforesaid provisions, therefore, make it clear that the functionaries under the Act, namely, the investigating agency, the prosecutors and the court must take appropriate measures to ensure that the identity of the child is not disclosed to his/her prejudice in the course of investigation and trial. Trial of a case concludes by delivery of judgment, hence, disclosure of identity of child in the judgment delivered by the Special Court would amount to breach of the aforesaid statutory mandate. It is apposite to note that while dealing with similar provisions in the Code, namely, section 327(2) & (3) of the Code read with section 228A of the Indian Penal Code, the Apex Court in the cases of State of Punjab v. Gurmit Singh and Ors., (1996) 2 SCC 384 and Di....
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....r the Act shall forthwith register the same in terms of Section 19 of the Act and furnish a copy free of cost to the child and/or his/her parents and inform the child or his/her parents or any person in whom the child has trust and confidence of his/her right to legal aid and representation and if the child is unable to arrange for his/her legal representation, refer the child to the District Legal Services Authority for necessary legal aid/representation under section 40 of the Act. Failure to register First Information Report in respect of offences punishable under sections 4, 6, 7, 10 & 12 of POCSO shall attract penal liability under section 166-B of the Indian Penal Code as the aforesaid offences are cognate and/or pari materia to the Penal Code offences referred to in the said penal provision. 2. The Police Officer on registration of FIR shall promptly forward the child for immediate emergency medical aid, whenever necessary, and/or for medical examination under section 27 of the Act and ensure recording of the victim's statement before Magistrate under Section 25 of the Act. In the event, the Police Officer or the Special Juvenile Police Unit is of the opinion th....
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....uestioning of the child particularly as to his/her character assassination which may impair the dignity of the child during such examination. In appropriate cases, the Special Court may call upon the defence to submit its questions relating to the incident during cross-examination in writing to the Court and the latter shall put such questions to the victim in a language which is comprehensible to the victim and in a decent and non-offensive manner. 7. In the event, the victim is abroad or is staying at a far off place or due to supervening circumstances is unable to physically attend the Court to record evidence, resort shall be taken for recording his/her evidence by way of video conference. 8. The identity of the victim particularly his/her name, parentage, address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless such disclosure of identity is in the interest of the child. 9. The Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immedia....