Careful evaluation of a child witness's testimony and the interpretation of provisions under the POCSO Act.

S.P. GARG, J.

1. Aggrieved by a judgment dated 30.01.2015 of learned Addl. Sessions Judge in Sessions Case No.144/13 arising out of FIR No. 411/13 PS Sultan Puri by which the appellant – Mohan was held guilty for committing offence under Section 5(m) of POCSO Act punishable under Section 6 of POCSO Act read with Section 18 of POCSO Act, he has filed the instant appeal. Vide order dated 02.02.2015, he was sentenced to undergo RI for five years with fine Rs. 5000/-.

2. Briefly stated, the prosecution case as set up in the charge-sheet was that on 07.07.2013 at around 10.00 a.m. at Budh Bazar Road, Sultan Puri, the appellant kidnapped the prosecutrix ‘X’ (name withheld) aged around 11 years from the lawful guardianship of her parents and took her towards bushes adjacent to the wall of Bhalla factory, Sultan Puri and committed aggravated penetrative sexual assault by penetrating his penis into her vagina and anus. He also allegedly deprived the victim of Rs. 500/-dishonestly. In the alternative, charge under Section 376 (2) (i) IPC was framed vide order dated 21.10.2013.

3. Police machinery was set in motion vide Daily Diary (DD) No.15A recorded at Police Station Sultan Puri at 10.50 a.m. Information was conveyed by HC Khem Raj that an ‘unknown’ person had caught hold of a boy and a girl in objectionable position and they were produced before him. The investigation was assigned to SI Rohtash Mudgal who along with Const. Dhan Singh went to the spot. The investigation was taken over by W/SI Manju Yadav. After recording victim’s statement (Ex.PW-5/A), the Investigating Officer lodged First Information Report. ‘X’ was medically examined; she recorder her 164 Cr.P.C. statement. The appellant was arrested. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant for commission of offences punishable under Sections 363/376/379/511 IPC and Section 10 of POCSO Act. In order to establish its case, the prosecution examined thirteen witnesses. In 313 Cr.P.C. statement the appellant denied his complicity in the crime and pleaded false implication. After considering the rival contentions of the parties and on appreciation of the evidence, the Trial Court, by the impugned judgment, acquitted the appellant of the charges under Section 379 IPC. The trial resulted in conviction of the offences mentioned previously. Being aggrieved and dissatisfied, the instant appeal has been preferred.

4. I have heard the learned counsel for the parties and have examined the file. ‘X’ was a child aged around 11 years. In her statement (Ex.PW-5/A), MLC (Ex.PW-3/A) and statement under Section 164 Cr.P.C. (Ex.PW1/B) throughout she claimed herself to be of 11 years. The Investigating Officer collected school certificate (Ex.P4) where her date of birth recorded was 25.04.2002. At no stage, the appellant challenged the date of birth recorded in the school certificate. Apparently, the prosecutrix was below 12 years of age on the day of incident.

5. Certain discrepancies have emerged in the statements of the prosecution witnesses. Initially, vide DD No.15A recorded at 10.50 a.m. the information conveyed to the police was that an ‘unknown’ person had produced a boy and a girl who were found in objectionable circumstances in the bushes near Kirari Phatak. It was also informed that the girl child was accusing the ‘boy’ of attempting to commit rape (Galat Kaam) upon her. In her complaint (Ex.PW-5/A), the victim disclosed that when she was going to her aunt Reena to purchase clothes, on the way Rs. 500 note in her hand fell down on the road. An ‘individual’ standing on the road picked the said note. When she demanded back the note, the said ‘individual’ asked her to accompany him to get the note. He took her towards the bushes of Kirari Phatak. The said individual put off his clothes and took off her salwar. When he started touching her body, she cried. She was scolded by the assa