The admissibility and relevance of res-gestae evidence under Section 6 of the Indian Evidence Act in establishing the sequence of events and the identification of the accused.

1. Jitender challenges the impugned judgment dated 1st April, 2016 convicting him for offences punishable under Sections 354 IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and the order on sentence dated 4th April, 2016 directing him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- each for offences punishable under Section 8 of POCSO Act and Section 354 IPC.

2. Assailing the conviction, learned counsel for the appellant contends that victim could not identify the appellant in the Court. Later when the APP pointed out towards the appellant, victim stated "perhaps" he was the person who misbehaved with her. Statement of the victim was not recorded under Section 164 Cr.P.C. The owner of the Atta chakki was not examined by the prosecution. There being no legal evidence against the appellant, he be acquitted.

3. Learned APP for the State on the other hand submits that there is no illegality in the impugned judgment of conviction and the order on sentence. The reason why the victim could not identify Jitender in Court was due to the fact that the victim was only six years old at the time of incident and her statement in Court was recorded nearly after 2½ years from the date of incident.

4. Process of law was set into motion on 3rd April, 2013 around 7:10 P.M., when information was received stating that "Shakti Apartment ke backside servant ne bachi ke saath galat kaam kiya" The aforesaid information was recorded as DD No. 28A and assigned to PW-6 SI Karan Singh, who along with PW-5 Ct. Mahesh reached the spot and met the complainant/mother of the Victim, who produced Jitender @ Jatin and gave a written complaint as under:

"I am resident of Rohini. On 3-4-13 my daughter was going downstairs then Jiten s/o Durga (servant of Aggarwal Atta Chakki) touch sex of my child with hand as well as by mouth in the stairs. My daughter cried due to this. When we asked her then she explained the incident. When we enquire from nearby flats then we came to know that person came from Aggarwal Atta Chakki. When we go to shop my daughter recognised him in front of police and explained the incident.

I request you to punish him so that he not even think to repeat this act in future."

5. On the basis of the aforesaid complaint (Ex. PW-1/A), FIR No. 177/2013 was registered under Section 354A at PS Prashant Vihar. Jitender was arrested vide arrest memo Ex. PW-1/B. Charge for offences punishable under Section 8 of POCSO Act and Section 354A IPC was framed against Jitender.

6. During the course of trial, PW-2 Virender Kumar from the school where the victim studied deposed that as per the copy of relevant entry of admission and withdrawal register (Ex. PW-2/A), copy of admission form (Ex. PW-2/B) and the copy of birth certificate (Ex. PW-2/C), the date of birth of the victim is 23rd March, 2007.

7. PW-1, mother of the victim, deposed that on 3rd April, 2013, they all had to go to the doctor as her son was ill. Her husband had gone downstairs with their son. When she was locking the door, she heard the victim crying loudly. She immediately rushed towards her, who was on the stairs. She pacified her, brought her inside the house and asked her as to why she was crying. Her daughter told that the uncle who had then just left was very bad and he touched her underwear, touched his mouth on her face and all over the body. He had also strongly embraced her. When she made enquiries from the neighbours about the person, she came to know that a boy had come from Aggarwal Atta Chakki from the nearby market. She along with her husband and the victim went to the aforesaid shop and victim identified the appellant at the shop as the boy who assaulted her. She stated that the owner of the said shop also confirmed that the said boy had gone to deliver flour at flat which was opposite to their flat.

8. PW-8 the Victim deposed in Court that on the date of incident, she was studying in