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IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
MAHENDER – APPELLANT
Versus
STATE OF DELHI – RESPONDENT
CRL.A. 1078 OF 2015
Decided On : 14-06-2017
kidnapping and sexual assault - Indian Penal Code, 1860 (IPC) - Section 376, Protection of Children from Sexual Offences Act, 2012 (POCSO Act) - Section 6, Section 363, Section 366, Section 5(m), Section 376(2)(i), Section 10 - The judgment discusses the appellant's conviction for kidnapping and sexual assault on a girl child under Section 363 IPC and Section 10 POCSO Act. The court analyzed the evidence, including the victim's age, the nature of the assault, and the plea of alibi, and upheld the conviction under Section 363 IPC and Section 10 POCSO Act. The court also highlighted the absence of evidence for the charge under Section 366 IPC and the lack of penetrative sexual assault for the charge under Section 376(2)(i) IPC and POCSO Act.
Fact of the Case:
The appellant was convicted for kidnapping and sexual assault on a girl child. The victim, a little more than seven years old, was assaulted by the appellant in his house. The appellant claimed an alibi, but the court rejected the evidence based on photographs and the plea of alibi.
Finding of the Court:
The court found the appellant guilty of kidnapping under Section 363 IPC and sexual assault under Section 10 POCSO Act. The court upheld the conviction based on the victim's testimony and the evidence presented.
Issues: The issues included the victim's age, the nature of the assault, the plea of alibi, and the evidence for the charges under Section 366 IPC, Section 376(2)(i) IPC, and POCSO Act.
Ratio Decidendi: The court relied on the victim's consistent testimony, the absence of evidence for the charge under Section 366 IPC, and the lack of penetrative sexual assault for the charge under Section 376(2)(i) IPC and POCSO Act to uphold the conviction under Section 363 IPC and Section 10 POCSO Act.
Final Decision: The appeal was found devoid of merit and dismissed.
1. By this appeal, the appellant challenges his conviction on charge of kidnapping and sexual assault on a girl child.
2. The first information report (FIR) no.460/14 (Ex.PW3/A) was registered in police station Sultan Puri on the basis of statement (Ex. PW4/A) of the first informant (PW5) at 00.45 hours on 25.04.2014 for investigation into offences statedly committed, they being punishable under Sections 376 of Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) against her daughter (PW-5), a child born, per school record (Ex. PW2/D), on 13.03.2007, in an incident that took place around 7.00 p.m. on 24.04.2014 in House no.P-85, Krishan Vihar, Sultan Puri, Delhi, concededly the residence of the appellant herein.
3. The appellant was apprehended by PW-6, the father of the prosecutrix child, sometime after 7.00 p.m. and, upon he being handed over to the police, he was formally arrested after personal search (vide Ex. PW10/E) in terms of arrest memo (ex. PW10/D) at 01.00 hours on 25.04.2014 by SI Lata Sachdeva (PW-10), the investigating officer (IO). On the basis of evidence gathered during investigation, report under Section 173 of the Code of Criminal Procedure, 1973 was prepared and submitted in the court of the Additional Sessions Judge-01, designated as a Special Court under POCSO Act, on 27.05.2014.
4. The charge-sheet led to the appellant being put on trial on the basis of formal charge framed on 15.12.2014 for offences punishable under Sections 363 and 366 IPC besides under Section 5(m) read with Section 6 of POCSO Act and, in the alternative, under Section 376 (2) (i) IPC.
5. The trial concluded with judgment dated 22.07.2015 whereby the appellant was held guilty and convicted for offences punishable under Section 363 IPC and Section 10 POCSO Act, he having been acquitted of the charge under Section 363 IPC, the alternative charge under Section 376 (2)(i) IPC being consequentially dropped.
6. By order dated 27.07.2015, the trial court while directing sum of Rs.50,000/- to be paid by District Legal Services Authority as compensation to the victim child, meted out punishment in the shape of rigorous imprisonment for five years with fine of Rs.5,000/- for offences under Section 10 of the POCSO Act and rigorous imprisonment for two years with fine of Rs.1,000/- for offence under Section 363 IPC. While granting benefit of Section 428 Cr. PC, the trial court also directed the substantive sentences to run concurrently.
7. The appeal at hand seeks to assail the above-mentioned judgment and order on sentence passed by the trial court.
8. The case for the prosecution lies in a narrow compass. The factual matrix may be noted.
9. As mentioned at the outset, the victim child was enrolled in a school for formal education and the record produced by the Principal of the said educational institution (PW-2), inter alia, based on original admission form, admission register and affidavit (Ex. PW2/A to C) confirms, by formal certificate (Ex. PW2/D), that her date of birth declared at the time of enrolment was 13.03.2007. Since the incident statedly took place on 24.04.2014, the child was a little more than seven years in age at the relevant point of time.
10. It may be mentioned here itself that the age of the prosecutrix has been variously stated at different stages in that in the FIR, lodged by the mother (PW-4), she was described as a girl aged five and half years which was the age mentioned to Dr. Rashmi Verma, Sr. Resident (Gynae) of Sanjay Gandhi Memorial Hospital, Mangolpuri (hospital) at the time of medical examination of the prosecutrix leading to preparation of the MLC (Ex. PW7/B), which was proved by Dr. M. Das (PW-7) and Dr. Akanksha (PW-8). The prosecutrix was taken before a Metropolitan Magistrate for her statement under Section 164 Cr. PC on 25.04.2014, the said statement having been recorded (vide Ex. PW5/A) indicating the child to have mentioned her own age as
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