Point of Law: Conviction Affirmed - Rape of Minor - Burden of proof on prosecution is not of beyond reasonable doubt. Prosecution has to lay down and prove fundamental facts regarding guilt of accused. Once such facts are proved, onus is upon accused to lead evidence to rebut presumption. Appellant has failed to dislodge statutory presumption under Section 29 of POCSO Act.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present appeal has been preferred under Section 374(2) read with Section 383 Cr.P.C. on behalf of the appellant against the judgment dated 27.07.2020 and the order on sentence dated 10.09.2020 passed by the learned ASJ (West), POCSO (Central), Tis Hazari Court, Delhi in Sessions Case No. 258/2013 in respect of FIR No. 353/2013 registered under Sections 377/376 IPC & Sections 6/9 of the POCSO Act at P.S. Punjabi Bagh, Delhi whereby the appellant has been convicted for the offence punishable under Section 6 of the POCSO Act. Further, vide order on sentence dated 10.09.2020, the appellant has been sentenced to undergo RI for a period of 10 years along with payment of fine of Rs.5,000/-, in default whereof to further undergo SI for a period of 15 days.

2. The brief facts, as noted by the Trial Court, are as follows:

“The present case was registered on the complaint of prosecutrix who shall be addressed as Ms. 'X' hereinafter (name and identity of Ms. 'X' is mentioned in the judicial file but not revealed here in order to protect her identity). The facts as alleged in the charge sheet are that Ms. 'X' was 12 years old at the time of alleged incident. Accused is her step father. Her real father died around six years back and her mother married the accused. Ms. 'X' was residing with her two younger brothers, mother and accused for the last 2-3 years. On 20.08.2013, their mother went to their native place along with the accused. On 24.08.2013, accused returned to Delhi without their mother. Ms. 'X' along with her two younger brothers went to sleep at the neighbour's house. At about 12.00 mid night, accused came there and took Ms. 'X' along with her two brothers to his jhuggi. It is further stated in the charge sheet that after reaching the jhuggi, accused gave beatings to the brothers of Ms. 'X' and sent them upstairs. It is further alleged that thereafter, accused removed her clothes and his own clothes and penetrated his urinal part in the vagina of Ms. 'X'. It is stated that neighbour Rafiq has seen Ms. 'X' wearing her clothes and raised alarm. Seeing this accused tried to run away and neighbours caught hold of him. It is further stated that police came at the spot and recorded the statement of Ms. 'X'.”

3. After completing the investigation, the charge sheet was filed and the charges were framed under Section 6 of the POCSO Act vide order dated 25.11.2013.

4. In support of its case, the prosecution examined total of 17 witnesses. The complainant i.e., the minor child victim was examined as PW-7. The child victim’s younger brothers were examined as PW-8 and PW-9 and the neighbour- Mohd. Rafiq was examined as PW-2. The child victim’s MLC was proved by Dr. Hemlata (PW-5) and Dr. Gurdeep Singh, CMO (PW-11). The age of the child victim was proved by Smt. Kamlesh Vaid, Principal (PW-4). SI Babita, the I.O. of the case was examined as PW-14. In defence evidence, the accused had examined Sh. Chander Shekhar, Nodal Officer and himself as DW-1.

5. I have heard learned counsel for the appellant as well as learned APP for the State and have gone through the Trial Court record.

MLC

6. The MLC of the child victim (Ex.PW5/A) was recorded on 26.08.2013 at about 4:00 a.m. After the initial examination, the child victim was referred to Gynaecology, SR. The MLC has been proved by Dr. Gurdeep Singh, who conducted the initial examination and Dr. Hemlata who deposed that she had identified the signatures of Dr. Asha Nagpal who had prepared the MLC. She identified the handwriting of Dr. Asha Nagpal and also identified her signatures at point ‘A’. As per the MLC, the hymen of the child victim was found torn.

FSL

7. The clothes of the child victim including baby shirt and baby pyjama were seized during the investigation and sent to FSL. As per the FSL report (Ex.PW-14/G), the source of exhibit ‘1a’, i.e., the pyjama of the child victim, was subjected to DNA examination. However, no male DNA profile could be generated from it.