Consistency of victim's testimony and medical evidence is crucial in establishing the occurrence of sexual assault under POCSO Act.

MUKTA GUPTA, J.

1. By the present appeal, the appellant challenges the impugned judgment dated 15th December, 2016 convicting him for offence punishable under Section 4 of Protection of Children against Sexual Offences Act, 2012 (in short 'POCSO Act') and in the alternative under Section 376 IPC and offences punishable under Sections 363/366/368/34 IPC and the order on sentence dated 21st December, 2016 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of 30 days for the offence punishable under Section 4 of POCSO Act and rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for a period of 30 days for the offences punishable under Sections 363/366/368 IPC.

2. Learned counsel for the appellant, while placing reliance on the decision reported as AIR 2011 SC 715 Alamelu and Anr. v. State, Rep. by Inspector of Police, submits that the learned Trial Court erred in returning a finding on the date of birth of the victim on a transfer certificate without the basis on which age was entered in the certificate. As per the prosecution, the victim was 13 years old at the time of incident, however, no witness knew about the exact age of the victim. Victim has exonerated the appellant in her statement recorded under Section 164 Cr.P.C. The landlord of the place where she was residing has not been examined. It is nowhere reflected in the testimony of the victim that she was kept in confinement, rather she was moving freely. Further as per the testimony of Dr. Geetanjali (PW-13), there was no sign of sexual assault belying the prosecution version.

3. Learned APP for the State on the other hand contends that there is no illegality in the impugned judgment and order on sentence. Appellant has been rightly convicted on the basis of testimony of the victim. Victim was recovered from the house of the appellant. There was no ulterior motive to falsely implicate the appellant. No question was put to the prosecutrix regarding her age in her cross-examination, hence her version in the examination in chief has gone un-rebutted.

4. Briefly stated, prosecution case is that a missing complaint was lodged by the father of the victim stating that on 8th November, 2012 at about 7:00 AM, victim 'S' went to school and did not return. On the basis of the aforesaid statement, FIR No. 378/2012 was registered at PS Bawana under Section 363 IPC. Efforts were made to search the victim. Hue and cry notices were published. During investigation, it was revealed that accused persons (Kamal and Sonu) who were neighbours of victim were also missing. Address of Kamal was obtained from his call records. On 16th January, 2013, a raiding team went to the house of the accused persons and recovered the victim. Accused persons namely Kamal and Sonu were arrested. Victim was medically examined. Her statement was recorded under Section 164 Cr.P.C. After completion of investigation, charge sheet was filed. Charge was framed for the offences punishable under Sections 376/363/366/368/34 IPC and in alternative under Section 6 of POCSO Act against the appellant. Charge for offences punishable under Sections 363/366/368/34 IPC was framed against Sonu. Sonu was also convicted for the offences punishable under Sections 363/366/368/34 IPC, however, she was released on the period undergone.

5. Victim was examined as PW-1 in Court. She deposed that two/three months before the incident, Kamal was also residing in another room near their room in the same building along with his wife/co-accused Sonu. She knew them since then. Thereafter, they left the said room and started residing somewhere else. Sonu used to talk to her on phone thereafter. Two/three days prior the incident, Sonu gave her a call and stated that she cannot live without her and that she was coming to pick her up from the school. V