The main legal point established is the reliance on consistent testimony and circumstantial evidence to affirm the conviction in a case involving the sexual assault of a minor.

S.P. GARG, J.

1. Aggrieved by a judgment dated 12.04.2016 of learned Additional Sessions Judge in Sessions Case No. 192/14 arising out of FIR No. 402/14 registered at Police Station Bharat Nagar by which the appellant Hunny was held guilty for committing offences punishable under Sections 363/323 IPC and Section 10 POCSO Act, the instant appeal has been preferred by him.

By an order dated 19.04.2016, the appellant was sentenced to undergo Rigorous Imprisonment for five years with fine Rs. 5,000/- under Section 10 POCSO Act; Rigorous Imprisonment for two years with fine Rs. 1,000/- under Section 363 IPC and Simple Imprisonment for one month with fine of Rs. 500/-, under Section 323 IPC. The sentences were to operate concurrently.

2. Briefly stated the prosecution case as set up in the charge-sheet was that on 21.07.2014 at around 9.00 am, the appellant kidnapped the prosecuritex/victim ‘X’ (changed name), aged around five years from the lawful guardianship of her parents when she was going along with her brother to her school. The appellant after kidnapping took the child to Police Colony, Narela with an intent to force/seduce her for illicit intercourse. The appellant sexually assaulted the child and also slapped her.

3. On 21.07.2014, when the victim ‘X’ had gone along with her brother ‘Y’ (changed name) to school at around 8.15 a.m., she was kidnapped. ‘Y’, on return to the home informed his parents that an individual had kidnapped ‘X’ near the school gate. Efforts were made to find out ‘X’ but she could not be traced. Hiralal (PW1), victim’s father, lodged missing report (Ex.PW-5/A) with the Police Station Bharat Nagar. The Investigating Officer after recording his statement lodged FIR under Section 363 IPC.

4. At around 12:30 p.m., Neelam (PW-3), who lived in the neighbourhood of victim’s parents noticed ‘X’ standing near Gol Chakkar of Partap Bagh. She brought the child to her home. The police was intimated. ‘X’ was taken for medical examination but her mother did not permit her internal medical examination. Her statement under Section 164 Cr.P.C. was recorded. The appellant was arrested and was medically examined. Statements of the witnesses conversant with facts were recorded. Upon completion of investigation, a charge-sheet was submitted against the appellant for the commission of aforesaid offences. The prosecution examined thirteen witnesses to establish its case. In 313 Cr.P.C. statement, the appellant denied his complicity in the crime and pleaded false implication. The trial resulted in conviction as mentioned previously. The said conviction under challenge in this appeal.

5. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence on record in its proper perspective and fell into grave error to base conviction on the sole testimony of the child witness who was unable to respond to the questions put to her. In her deposition before the Court, she did not utter if sexual assault was committed upon her. CCTV footage relied upon by the prosecution is not admissible in evidence in the absence of Certificate under Section 65B Evidence Act.

Material discrepancies emerging in the statements of the prosecution witnesses have been ignored without cogent reasons. Learned Additional Public Prosecutor refuting the contentions urged that the evidence of the prosecutrix is beyond suspect and can be believed.

6. The victim in the instant case is a child, aged around five years. On the day of incident she had gone with ‘Y’, his elder brother aged around ten years to her school. She was, however, kidnapped near the school gate. PW-4 ‘Y’, victim’s brother aged around ten years appeared in the court. The learned Presiding Officer conducted preliminary enquiry to ascertain if he was capable to understand the questions and answer them properly. The court was satisfied that the witness was capable to understand the questio