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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, P.S. TEJI, JJ.
Manoj - Appellant
Versus
State - Respondent
CRL.A. 647 of 2015
Decided On : 21-11-2017
POCSO - Conviction under Section 5(k) - Sections 2(f), 3, 6, 18 of POCSO Act - The court discussed the definition of 'penetrative sexual assault' under Section 3 of the POCSO Act and the evidence presented by the appellant's counsel to argue that the offence proved against the appellant did not fall under Section 5(k) as it was not proved that the appellant had committed penetrative sexual assault on the prosecutrix. The court analyzed the testimonies of the prosecutrix, the child witness, and the complainant, along with the medical examination reports, and concluded that the offence under Section 5(k) was not established. The court acquitted the appellant of the charged offence under Section 6 of the POCSO Act and convicted him under Section 18 of the POCSO Act for attempt to commit the offence of penetrative sexual assault.
Fact of the Case:
The appellant appealed his conviction under Section 5(k) of the POCSO Act and consequent punishment under Section 6 of the said Act, arguing that the offence proved against him did not fall under Section 5(k) as it was not proved that he had committed penetrative sexual assault on the prosecutrix. The testimonies of the prosecutrix, the child witness, and the complainant, along with the medical examination reports, were analyzed by the court.
Finding of the Court:
The court found that the offence under Section 5(k) was not established, acquitted the appellant of the charged offence under Section 6 of the POCSO Act, and convicted him under Section 18 of the POCSO Act for attempt to commit the offence of penetrative sexual assault.
Issues: The main issue was whether the appellant had committed penetrative sexual assault on the prosecutrix, as required under Section 5(k) of the POCSO Act.
Ratio Decidendi: The court's decision was based on the analysis of the testimonies of the prosecutrix, the child witness, and the complainant, along with the medical examination reports, which led to the conclusion that the offence under Section 5(k) was not established.
Final Decision: The appellant was acquitted of the charged offence under Section 6 of the POCSO Act and convicted under Section 18 of the POCSO Act for attempt to commit the offence of penetrative sexual assault.
VIPIN SANGHI, J.
1. The appellant has preferred the present appeal to assail his conviction under Section 5(k) of the Protection of Children from Sexual Offences Act, 2012, (POCSO) and consequent punishment under Section 6 of the said Act, vide judgment dated 03.12.2014 in Sessions Case No.114/2013 arising out of FIR No.157/2013 registered at PS–Begum Pur. By the order on sentence dated 10.12.2014, the appellant has been sentenced to life imprisonment with fine of Rs.10,000/-, and in default of payment of fine, to undergo further Simple Imprisonment of six months.
2. The submission of Mr. Lokur, learned counsel for the appellant is that the victim child G was, indisputably, a person with mental disability. This finding is not disputed by the appellant. Though the age of the prosecutrix was mentioned as 19 years in the medical examination report, as well as in the complaint/ statement made by the complainant under Section 161 Cr.P.C., learned counsel for the appellant also does not dispute the fact that she was below the age of 18 years, as medically opined on record.
3. The only submission that Mr. Lokur has pressed is that the offence proved against the appellant is not one falling under Section 5(k) inasmuch, as, it has not been proved that the appellant had committed penetrative sexual assault on the prosecutrix.
4. The expression “Penetrative sexual assault” is defined in Section 2(f) of POCSO to have the same meaning as given to it in Section 3. Section 3 of the said Act reads as follows:
“3. Penetrative sexual assault : A person is said to commit "penetrative sexual assault" if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”
5. Mr. Lokur has read the testimonies of the prosecutrix G (PW-1), the niece (sister’s daughter) of the prosecutrix, who is named as C (PW-2), and the complainant Roshan Khatun (PW-6)/ elder sister of the prosecutrix, to submit that neither of them have claimed penetration by the appellant falling in either of the clauses (a) to (d) of Section 3.
6. The prosecutrix (PW-1) in her statement had, inter alia, stated:
“Baaji (witness is referring to her elder sister Smt. Roshan) kundi band karke chali gayi thi. Manoj aya. Kundi khol kar aya, isne C ne sab dekha, aur mummy ko bata diya. Maine bhi Baaji ko sab bata diya.
Q. Apne Baaji ko kaya bataya?
Ans. The question has been explained to the witness by Smt. Roshni, after which, the witness has stated as under :-
Usne galat kaam kara tha, to hamne Baaji ko bata diya.
Q. Kaya galat kaam kara tha?
The question has been explained to the witness by Smt. Roshni, after which, the witness has stated as under :-
Ans. Usne seene par haath mara tha. Salwar utar diya tha, aur yahan mara tha (witness has pointed towards her private parts with her right hand)
Q. Phir kaya hua tha?
The question has been explained to the witness by Smt. Roshni, after which, the witness has stated as under : -
Ans. Usne hamari ye khol kar kara tha. (the witness has pointed towards her salwar)
Q. Aap Manoj ko Jante ho?
The question has been explained to the witness by Smt. Roshni, after which, the witness has stated as under : -
Ans. Haan. Vo Hamare ghar ke pass rahta tha.
At this stage, the glass pane of the window in the chamber has been opened. The window is overlooking the corridor outside the Court room where accused is present in police custody. There are other
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